MtjpiOVf 


OF 

PROCEEDINGS 

IN  THE 

DISTRICT  COURT  OF  THE  UNITED  STATES 

FOR  THE  SOUTHERN  DISTRICT  OF  NEW-YORK, 

OJY  A  SUIT 

BROUGHT  BY  THE  UNITED  STATES 

AGAINST 

June  3,  1822. 


CONTAINING  THE  TESTIMONY  AT  LARGE,  THE  SPEECHES  OF  THE 
DEFENDANT,  AND  OF  THE  COUNSEL  ON  BOTH  SIDES, 
TOGETHER  WITH  THE  JUDGE’S  CHARGE. 


BY  ONE  OP  THE  JURY. 


NEW-YORK : 

PRINTED  BY  C.  S.  VAN  WINKLE, 


1822. 


Southern  District  of  iVew -  York,  ss. 

BE  IT  REMEMBERED,  that  on  the  twenty-fifth  day  of  June,  in  the  forty- 
sixth  year  of  the  Independence  of  the  United  States  of  America,  Arthur  J.  Stansbury, 
of  the  said  district,  hath  deposited  in  this  office  the  title  of  a  book,  the  right  whereof  he 
claims  as  author,  in  the  words  following,  to  wit: 

“  Report  of  Proceedings  in  the  District  Court  of  the  United  States  for  the  Southern 
District  of  New-York,  on  a  suit  brought  by  the  United  States  against  Daniel  D. 
Tompkins,  June  3.  U22.  Containing  the  testimony  at  large,  the  speeches  of  the  defend¬ 
ant,  and  of  the  counsel  on  both  sides,  together  with  the  Judge’s  charge.  By  One  of  the 
Jury.” 

In  conformity  to  the  act  of  the  Congress  of  the  United  States,  entitled,  11  An  act  for 
the  encouragement  of  learning,  by  securing  the  copies  of  maps,  charts,  and  books,  to 
the  .authors  and  proprietors  of  such  copies,  during  the  times  therein  mentioned  and 
also  to  an  act,  entitled,  “  An  act  supplementary  to  an  act,  entitled,  an  act  for  the 
encouragement  of  learning,  by  securing  the  copies  of  maps,  charts,  and  books,  to  the 
authors  and  proprietors  of  such  copies,  during  the  times  therein  mentioned,  and  extend¬ 
ing  the  benefits  thereof  to  the  arts  of  designing,  engraving,  and  etching  historical 
and  ether  prints.  ’ 

JAMES  DILL, 

Clerk  of  the  Southern  District  of  New-York. 


The  characters  of  men  holding  eminent  stations  of  honour  and  of 
trust,  are,  in  some  sort,  the  public  property.  Whatever  greatly  af¬ 
fects  them,  awakens  a  general  interest,  and  leads  to  long  and  eager 
discussion.  This  is  right  :  it  bespeaks  a  state  of  the  public  mind 
alive  to  the  national  honour,  and  practically  identifying  that  honour 
with  the.  conduct  of  those  who  ought  to  sustain  it.  The  individual 
involved  in  the  case  now  reported,  occupies  the  second  station  in 
this  Republic  ;  he  has  been  reported  as  a  public  defaulter  ;  and 
this  suit  was  brought  to  try  the  question,  whether  he  is  a  debtor 
or  a  creditor  to  the  country.  To  Americans  this  cannot  be  a  ques¬ 
tion  of  indifference,  since,  by  the  moral  habits  of  mankind,  debt  is 
for  the  most  part  identified  with  dishonour. 

The  report  lays  no  claim  to  legal  precision  ;  its  author  is  not  a 
lawyer  :  its  only  merit,  if  it  has  any,  consists  in  its  presenting  a  fair 
and  impartial  statement  of  the  substance  of  the  cause.  As  a  Juror, 
the  Reporter  was  compelled,  by  his  duty,  to  give  the  proceedings 
his  earnest  attention — but  if  was  not  till  they  were  closed  that  the 
idea  was  suggested  to  him  of  attempting  to  report  them.  Hence  the 
production  is  less  complete  than  it  might  easily  have  been  made,  had 
that  idea  been  taken  up  at  the  beginning.  The  testimony  is  put 
down  partly  from  memorandums  taken  in  the  jury  box,  partly  from 
notes  kindly  furnished  by  the  counsel  on  both  sides,  and  partly  from 
recollection.  The  closing  part  of  the  address  of  the  Vice  President 
has  been  literally  copied  from  a  paper  supplied  by  himself; 
the  speech  of  the  District  Attorney  is  attempted  from  a  memorandum 
in  writing ;  those  of  Mr.  Hoffman  and  Mr.  Emmet  are  from  memory 
entirely. 


4 


To  the  presiding  Judge  the  Reporter  is  indebted  for  the  very  able 
charge  delivered  to  the  Jury  :  the  documents  introduced  have  been 
carefully  compared  with  the  originals,  and  may  be  relied  upon  as 
accurate. 

With  these  explanatory  notices,  the  report  is  submitted  to  the 
reader’s  candour  and  indulgence. 

A.  J.  S. 


> 


DISTRICT  COURT  OF  THE  UNITED  STATES 


FOR  THE  DISTRICT  OF  NEW-YORK. 


MONDAY  MORNING,  JUNE  3d,  1822.— 11  o’clock. 

The  Court  met,  pursuant  to  adjournment. 

Present,  The  Hon.  WILLIAM  P.  VAN  NESS. 

The  Court  was  opened  by  proclamation. 

The  United  States  of  America  } 
v.  > 

Daniel  D.  Tompkins.  ) 

On  motion  of  the  Attorney  of  the  United  States,  this  cause  came 
on  to  trial,  and  the  following  Jury  was  impannelled  and  sworn  : 

Azariah  Ross,  Samuel  Norsworthy,  William  Jessup, 

Willet  Coles,  John  P.  Dieterich,  Edward  M.  Murden, 

Noel  Blanche,  Arthur  J.  Stansbury,  John  Bedient, 

John  Paret,  Isaac  Marquand,  Moses  Gulick. 

The  Attorney  of  the  United  States,  Robert  Tillotson,  Esq. 
opened  the  cause  ;  and  stated,  that  the  suit  was  brought  to  recover 
from  the  defendant  the  balance  which  appeared  on  the  books  of  the 
Treasury  to  be  due  from  him  to  the  United  States. 

He  produced  in  evidence  the  following  documents  : 

uDr. — Daniel  D.  Tompkins,  late  Governor,  in  ac.wilh  the  United,  States. 

“To  Abijah  Yelverton,  late  Paymaster  Vols.  and  C.  For 
this  amount  entered  to  the  credit  of  Governor  Tomp¬ 
kins,  on  settlement  of  bis  accounts  15th  of  November, 

1816,  being  for  payments  made  certain  Militia  and  Vo- 


lunteers,  for  which  said  Yelverton  is  entitled  to  a  cre¬ 
dit  ;  as  the  advance  made  him  by  Governor  Tompkins, 
to  pay  these  troops,  was  passed  to  the  Governor’s 
credit  on  the  1 5th  of  December,  1814,  and  charged  to 
the  personal  account  of  said  Yelverton,  vie. 

Volunteers, . $5,833  79 

Militia, . •  £,627  63 

- 14,461  42 

“To  the  Corporation  of  New-York. 

To  this  sum  admitted  to  his  credit  on  the  30th  Novem¬ 
ber,  1816,  and  charged  to  the  Corporation  of  New- 
York,  being  a  sum  paid  that  body  more  than  the 
amount  of  interest  on  the  loan  made  the  General  Go¬ 
vernment,  now  brought  to  his  debit,  and  for  which  he 
acknowledges  himself  accountable,  .  .  723.  86 


$15,185  28 


“  To  balance  due  the  United  States,  .  .  .  11,022  57 

“  Second  Comptroller’s  Office,  June  16th,  1820. 

“Examined  by  Joseph  Hinkley,  Clerk.” 

“ Daniel  D.  Tompkins ,  late  Governor,  in  ac.  with  the  United  States. — Cr. 

“  By  general  account  of  arrearages. 

For  the  amount  of  his  account  for  pay  and  emoluments 
while  in  the  service  of  the  United  States,  in  the  late 
war  with  Great  Britain;  allowed  by  the  Secretary  of 
War,  viz. 

“As  Major  General,  from  the  7th  of  September 

to  tbe  4th  of  November,  1812.  .  .  $656  17 

“  As  Major  General,  commanding  at  N.  Y.  from 

the  16th  October,  1814,  to  16th  April,  1815,  2,641  04 


Pay  and  emoluments, 


3,297  21 


7 


’  For  allowance  of  transportation  of  baggage,  fuel, 
and  quarters,  in  the  above  period,  as  per  ac¬ 
count  allowed  by  the  Secretary  of  War,  865  50 

- 4,162  71 

Balance  due  the  United  States,  .  .  ,  11,022  57 


%  15,185  28 

“  Treasury  Department,  Third  Auditor’s  Office, 

14th  June,  1820.  Stated  by  J.  Thompson,  Chief  Clerk.” 

“  No.  7,377.  Treasury  Department,  Third  Auditor’s  Office,  14th  June,  1820. 

“  I  certify  that  I  have  examined  and  adjusted  the  account 
of  Daniel  D.  Tompkins,  late  Governor  of  the  State  of 
New-York,  and  find  that  he  is  chargeable  with  the 
following  sums,  viz. 

“  Amount  of  warrant  number  617,  transmitted  to  him  on 
the  28th  of  June,  1817,  on  account  of  fortifica¬ 
tions,  ........  $6,000  00 

“  This  sum  being  the  amount  passed  to  his  credit  the 
15th  of  November,  18 16,  for  certain  payments  made  by 
Abijali  Yelverton  to  Militia  and  Volunteers,  the  same 
being  included  in  the  advances  made  said  Yelverton, 
and  passed  to  the  credit  of  the  Governor,  the  15th  of 
December,  1814,  viz. 

On  acct.  of  Volunteers,  .  $  5,83.3  70 
do.  Militia,  .  .  8,627  63 

- 14,461  42 

<<  This  sum  admitted  to  his  credit  on  the  30th  of  No¬ 
vember,  1816,  as  a  sum  paid  the  Corporation  of  New- 
York  for  interest  more  than  they  were  entitled  to, 
on  money  loaned  the  General  Government,  for  which 
he  is  now  held  accountable,  .  ...  723  80 


Making  together,  21,185  28 
And  that  he  is  entitled  to  the  following  credits,  viz. 


8 


“  For  this  sum  placed  in  the  hands  of  Justus  Post  by 
the  Committee  of  Defence  at  New- York,  in  October, 

1814,  and  expended  on  the  fortifications  at  Hurl  Gate, 
to  refund  which  the  above  warrant,  No.  617,  was  is¬ 
sued  and  charged  to  Governor  Tompkins — on  ac¬ 
count  of  Fortifications,  .  .  $  6,000 

“  This  amount  being  for  his  pay,  emoluments,  transpor¬ 
tation,  fuel,  and  quarters,  as  Major  General,  while  in 
the  service  of  the  United  States ;  allowed  by  the 
Secretary  of  War,  ....  4,162  71  $  10,162  71 
Leaving  a  balance  due  the  United  States  of  $  11,022  57 
“  As  appears  from  the  statement  and  vouchers  herewith 
transmitted  for  the  decision  of  the  Second  Comptrol¬ 
ler  of  the  Treasury  thereon.  Peter  Hagner,  Auditor. 

“  To  Richard  Cutts,  Esq.,  Second  Comptroller  of  the  Treasury. 

“  Second  Comptroller's  Office. 

“  I  admit  and  certify  the  above  balance,  this  i  6th  day  of  June,  1820. 

“  Richard  Cutts,  Second  Comptroller.” 

“  Treasury  Department,  Third  Auditor’s  Office,  October  15th,  1821. 

Pursuant  to  an  act  to  provide  for  the  prompt  settlement  of  public 
accounts,  approved  the  3d  of  March,  1817.  I,  Peter  Hagner,  Third 
Auditor  of  the  Treasury  of  the  United  States,  do  hereby  certify  that 
the  foregoing  transcripts  are  true  copies  of  the  original  on  file  in  this 
office. 

Peter  Hagner,  Aud.” 

Be  it  remembered,  that  Peter  Hagner,  Esquire,  who  certified  the 
foregoing  transcripts,  is  now  and  was  at  the  time  of  doing  so,  Third 
Auditor  of  the  Treasury  of  the  United  States,  and  that  faith  and 
credit  are  due  to  his  official  attestations. 

“  In  testimony  whereof,  I,  William  H.  Crawford,  Secretary  of  the 
Treasury  of  the  United  States,  have  hereunto  subscribed  my 
name  and  caused  to  be  affixed  the  seal  of  this  Department,  at 
the  City  of  Washington,  this  15th  day  of  October,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  twenty-one. 

|  l.  s.]  Wm.  H.  Crawford,  Secretary  of  the  Treasury.” 


9 


“  GENERAL  ACCOUNT  OF  ARREARAGES, 

“  Dr. — Daniel  D.  Tompkins ,  late  Governor  of  New -York,  in  ac.  with 

* 

the  United  States. 

“  1820. 

June  16th.  To  balance  per  settlement,  No.  7377,  11,022  57 

“  1821. 

Nov.  27ht.  To  Peter  Magher,  for  amount  refunded 

per  receipt,  19th  May  1813,  .  .  .  200  00 

11,222  57 


“To  balance  due  United  States,  .  .  11, 22*.  57 

**  ' 

•  Daniel  D.  Tompkins ,  late  Governor  of  New-York,  in  ac. -with  the 

United  States. — Cr. 

“  Balance  due  United  States,  .  .  11,222  57 

“  Treasury  Department,  Third  Auditor’s  Office,  Feb.  5th,  1822, 

“  Stated  by  William  S.  Wilkin,  Clerk. 

“  Second  Comptroller’s  Office,  Feb.  6th,  1822, 

“  Examined,  E.  Reynolds,  Chief  Clerk.” 

[Certified  in  the  same  manner  as  the  preceding.] 

The  Vice  President  opened  the  defence  in  person,  and  addressed 
the  jury  to  the  following  effect : 

Gentlemen, 

It  gives  me  the  most  unfeigned  satisfaction  to  have,  at  length, 
this  opportunity  of  addressing  a  jury  of  my  country.  It  is  not 
forced  upon  me- — I  have  long  and  earnestly  sought  it.  The  suit  which 
you  are  called  to  decide  upon  has  been  brought  at  my  suggestion. 

2 


10 


I  sought  it,  because,  after  enduring  so  much  from  misrepresentation 
and  calumny,  I  longed  for  the  opportunity  to  convince  at  least  a  jury 
of  .twelve  of  my  fellow-citizens,  that  I  am  not  what  I  have  been 
falsely  proclaimed  to  be,  a  public  defaulter ;  but  am  now,  and  have 
been,  from  the  very  commencement  of  my  public  services,  the 
creditor  of  my  country.  If  I  am  not  deceived,  I  shall  be  able  to 
satisfy  every  man  among  you  that  I  have  been  its  creditor,  by  the 
acknowledgment  of  the  treasury,  to  the  amount  of  from  five  to  five 
hundred  and  nineteen  thousand  dollars.  In  the  commencement, 
however,  of  this  investigation,  I  have  to  warn  you,  gentlemen, 
against  the  influence  of  personal  or  of  political  feeling.  Should  the 
various  situations  in  which  my  public  life  has  placed  me  have  brought 
me.  at  any  time,  into  collision  with  party  feeling,  bury  it,  I  beseech 
you,  on  this  occasion  ;  let  not  its  influence  intrude  upon  the  sacred¬ 
ness  of  a  court  of  justice.  And  if,  on  the  other  hand,  the  circum¬ 
stances  of  injury  which  1  have  sustained,  and  of  destitution  in  which 
I  appear,  should  excite  any  thing  like  sympathy  or  pity  in  your 
breasts,  bury  that  also,  I  conjure  you.  1  ask  no  sympathy — I  seek 
no  compassion.  Could  1  believe  that  your  verdict  on  this  occasion 
was  to  be  guided  by  your  sympathy,  I  should  despise  both  it  and 
you.  1  demand  of  you  justice  only.  If  my  claims  are  not  just,  do 
not  allow  them  ;  but  if  they  are,  have  the  firmness  and  the  inde¬ 
pendence  to  say  that  they  .  are. 

(The  Defendant  here  went  into  a  full  explanation  of  the  manner 
in  which  the  double  credit,  on  which  the  present  action  is  brought, 
came  to  appear  against  him  on  the  treasury  books.  An  amount 
which  should  have  been  passed  at  once  to  his  credit,  was  entered 
short,  because  the  money,  though  furnished  by  him,  had  been  paid 
out  by  Major  Yelverton,  and  credited  to  the  latter.  After  the 
Defendant  left  Washington,  the  Comptroller  of  the  treasury,  having 
understood  the  nature  of  the  transaction,  ordered  the  amount  to  be 
extended.  This  was  done  without  the  knowledge  of  the  Auditor  or 
of  the  Defendant  ;  and,  therefore,  in  a  subsequent  settlement,  he 
continued  to  charge  this  balance. 

He  then  went  into  a  general  statement  of  the  nature  of  his  claims, 
which  are  contained  in  the  following  bill  of  particulars  : — ) 


11 


“  The  United  States  to  Daniel  D.  Tompkins,  Dr . 

1822. 

June  1.  [No  1.]  To  interest  on  $38,320  20,  from  1812  to 

1816,  4  years,  ....  10,729  64 

[No.  2.]  To  interest  on  $4,411  25,  from  24th 

Dec.  to  24th  May.  1820,  is  5  years  6  months,  1,689  29 

[No.  3  ]  To  $14,527  64,  which  Mr.  Brent,  the 
Paymaster  General  of  the  Army,  promised  to 
credit  my  account,  but  has  not,  14,527  64 
Interest  thereon,  9  yrs.  and  6  months,  9,666  83 

- - 24,194  47 

[No.  4.]  To  $20,000  improperly  charged  to  me 
in  the  second  account,  .  .  20,000 

Interest  thereon,  6  years  and  6  months,  9,100 

- -29,100  00 

[No.  5.]  To  Interest  on  $2,192  77,  from  1814  to 

1816,  when  paid,  is  2  years,  .  .  ,  306  98 

[No.  6.]  To  Commission  of  5  per  cent, 
on  receiving,  advancing,  and  disburs¬ 
ing  $1,908,599  97,  is  .  95,429  99 

Interest  thereon,  7  years  6  months,  50,100  67 

- - 145,530  66 

[No.  7.]  To  amount  of  difference  between  Govt. 

Stock,  with  which  the  Corporation  and  others 
similarly  situated,  were  paid,  and  the  current 
money  $1,150,  000,  advanced  and  borrowed  by 
me  on  personal  responsibility,  287,500  00 
Interest  thereon,  to  1st  June,  1822, 
at  6  per  cent,  quarterly,  .  160,260  58 

- 447,760  58 

To  advance  of  Stock  above  par  at  the  present 
*hae,  4  per  cent.  .....  11,600  00 


$670,811  62 


12 


** 


1  t  11  Contra,  Cr. 

“  By  amount  of  balance  reported  by  Mr.  Hagner, 

11,022  57 

“  Interest  thereon,  9  years  and  6  months,  7,329  00 

- 18,351  57 

“  By  Balance  due  Daniel  D.  Tompkins,  652,460  05 

$  670,811  62 

In  support  of  these  several  items  in  his  bill  of  particulars  he  pro¬ 
ceeded  to  call  the  following  witnesses  : 

Benjamin  Romaine 

Proved  the  handwriting  of  Col.  Tobias  Lear,  accountant  of  the 
War  Department  of  the  United  States,  to  the  following  letter  : 

“  Department  of  War,  Accountant’s  Office,  December  11th,  1814. 

“  Sir, 

“  Your  accounts  for  payments,  advances,  &c.  for  the  Militia  of  the 
State  of  New-York,  in  the  service  of  the  United  States,  in  1812  and 
1813,  have  been  stated  at  this  office,  and  a  balance  of  thirty-eight 
thousand  three  hundred  aDd  twenty  dollars  and  twenty  cents,  found 
due  to  you,  differing  three  thousand  eight  hundred  and  thirty-seven 
dollars  and  sixty-eight  cents  from  your  account,  which  difference 
will  be  shown  by  the  inclosed  statement. 

1  have  the  honour  to  be 
very  respectfully,  Sir, 
your  obedient  servant, 

Tobias  Lear.” 

Honourable  Rufus  King,  Senator  of  the  United  States. 

The  witness  stated,  that  in  the  autumn  of  1814  he  had  applied  to 
the  defendant,  and  representing  to  him  the  embarrassed  state  of  the 
public  treasury,  the  unprotected  state  of  the  city  of  New-York,  and 


* 


id 


the  inability  of  the  General  Government  to  protect  it,  had  urged,  from 
the  peculiar  situation  in  which  Providence  had  placed  him,  that  it 
was  his  solemn  duty  to  make  great  exertions,  and  to  assume  great 
responsibilities.  He  had  represented  to  the  defendant  that  the  state 
in  a  great  measure  looked  to  him  for  its  protection,  and  that  he 
must  call  out  the  militia,  and  find  resources  to  pay  them.  The 
defendant  had  stated  in  reply,  that  he  was  already  committed  very 
deeply,  and  that  if  he  should  go  farther  in  pecuniary  responsibili¬ 
ties,  he  must  do  it  at  the  risk  of  ruin  :  on  which  witness  solemnly 
urged  him  to  go  forward  and  do  his  duty ;  and  if  ruin  was  the  con¬ 
sequence,  to  consent  to  endure  it,  and  look  to  the  honour  and  the 
gratitude  of  his  country. 

The  defendant’s  account  with  the  General  Government,  up  to  the 
24th  of  August,  1815,  was  read  as  evidence  on  the  part  of  the  defence. 
It  was  certified  by  Mr.  Hagner  to  be  a  true  copy  of  an  account  de¬ 
livered  by  the  defendant  at  the  Treasury  Department. 

The  District  Attorney  objected  to  this  paper,  as  being  ex  parte  evi¬ 
dence,  and  not  duly  exemplified  : — and  insisted  that  Mr.  Hagner 
himself  ought  to  be  examined. 

The  defendant’s  counsel  replied. 

The  Court  allowed  the  objection,  and  the  paper  was  excluded. 

An  exemplified  copy  of  the  defendant’s  account  at  the  Treasury,  up 
to  November  6th,  1816,  was  read  as  follows  : 

“  Dr. — D.  D.  Tompkins,  Gov.  of  N.  Y.  (pay .  of  the  army)  in  ac.  with 

the  United  States. 

“  1816.  To  warrants  on  the  Treasurer. 

“  For  part  of  warrant  3772  on  account  of  pay,  $  300,000  00 
To  D.  D.  Tompkins,  for  militia. 

“  For  balance  due  by  him  on  that  account, 
transferred  to  his  debit  on  this, 


30,772  80 


14 


To  D.  D.  Tompkins,  for  fortifications. 
fl  For  balance  due  by  him  on  that  account,  trans¬ 
ferred  to  his  debit  on  this,  140,000  00 

To  D.  D.  Tompkins,  for  camp  equipments. 

“  For  balance  due  by  him  on  that  account,  trans¬ 
ferred  to  his  debit  on  this,  25,000  00 

To  D  D.  Tompkins,  for  Qr.  Mr.  Dep. 

For  balance  due  by  him  on  that  account,  trans¬ 
ferred  to  his  debit  on  this,  3,069  49 

To  D.  D.  Tompkins,  for  Med.  and  Hosp.  Dep. 

“  For  balance  due  by  him  on  that  account,  trans¬ 
ferred  to  his  debit  on  this.  13,079  30 

To  D.  D.  Tompkins,  for  contingencies. 

“  For  balance  due  by  him  on  that  account,  trans¬ 
ferred  to  his  debiton  this,  12,411  2S 

c<  Balance  due  him,  2,192  77 


£526,525  68 

ce  D.  D.  Tompkins,  Governor  of  JV.  Y.  (pay.  of  army )  in  ac.  with  the 

United  States. — Cr. 


“  By  balance  due  him  on  settlement,  14th  Dec. 


1814,  •  .  ...  s.  .  58,320  20 


“  By  Samuel  H.  Eakin,  Dep.  Paymaster.  For 
the  following  sums  advanced  him  on  ac¬ 
count  of  pay,  viz.  This  sum  per  receipt 


©f  the  7th  December,  1814, 
Dec,  23d. 

24th, 

March  13th,  1815,  .• 

May  15th, 


88,327  30 
20.000  00 
80,000  00 
108  57 
469  61 


188,905  48 


“  By  Jonathan  Bell,  Assistant  Dep.  Paymaster  Gene¬ 
ral.  For  amount  advanced  him  on  account  of  pay, 
per  receipt  of  25th  March,  1815,  .  .  4,300  00 

“  By  Samuel  Edmunds,  Paymaster  General  of  N.  Y. 


Militia.  For  the  following  advances  made  him  on 
account  of  pay,  viz. 

This  sum  per  Receipt  of  24th  Dec.  1814,  $275  000 
25th  March,  1815,  20,000 

- - 295  000 


$526,525  68 

M  Balance  due  Gov.  Tompkins,  brought  down,  2,192  77 

“  Department  of  War. 

“  Additional  account,  Nov.  6th,  1816, 

“  (Signed,)  Peter  Hagner.” 

Samuel  Tooker 

Testified,  that,  as  agent  for  the  defendant,  he  had  called  on  the  Sec¬ 
retary  of  War,  on  Mr.  Vandeventer,  and  Mr.  Hagner,  and  inquired  if 
the  claims  of  the  defendant  had  not  been  presented  and  disallowed, 
specifying  the  claims  now  made  ;  and  that  it  was  admitted  that  they 
had  been.  Mr.  Calhoun  and  Mr.  Hagner  said  that  the  credits  claimed 
could  not  be  allowed  without  an  act  of  Congress  for  that  purpose. 
They  told  the  witness  that  the  defendant  had  claimed  interest,  com¬ 
mission,  and  the  difference  between  stock  and  current  money  ;  and 
that  the  claims  had  been  disallowed. 

George  Newbold,  Cashier  of  the  Bank  of  America, 

Stated,  that  in  December,  1814,  the  defendant  obtained  from  the  Bank 
of  America,  a  loan  of  $150,000  on  his  own  note  at  four  months,  se¬ 
cured  by  the  hypothecation  of  treasury  notes  to  the  amount  of 
$165,000.  He  produced  and  read  the  original  agreement  with  the 
bank  in  relation  to  this  transaction.  He  farther  stated,  that  under 
this  agreement,  the  treasury  notes,  to  the  amount  of  $156,000,  were 
sold  by  the  bank  some  months  after  the  loan  became  due  ;  and  the 
balance  of  those  notes,  amounting  to  $9,000,  returned  to  the  defend¬ 
ant.  That  he  was  charged  by  the  bank  interest  at  7  per  cent. 

In  reply  to  queries  by  the  counsel  on  both  sides,  the  witness  added 
Shat  the  bank  made  the  loan  chiefly,  but  not  exclusively,  on  the  secu- 


16 


rity  they  derived  from  the  deposit  of  the  treasury  notes  : — that  they 
held  the  defendant  personally  responsible  for  any  deficiency  that 
might  happen  on  those  notes  :  that  they  did  not  presume  such  de¬ 
ficiency,  if  any,  would  be  very  serious,  probably  not  exceeding  three 
or  four  thousand  dollars  :  that  they  also  had  respect  to  the  official 
situation  and  standing  of  the  Governor,  and  to  the  public  use  to  be 
made  of  the  money  ;  and  entertained  the  expectation  that  even  in 
case  of  final  loss,  the  General  Government  would  not  let  him  suffer  ; 
at  all  events,  that  Government  would  be  more  willing  to  reimburse 
him  than  the  bank.  Witness  further  stated,  that  the  bank  afterwards 
made  a  further  loan  to  the  defendant  equal  in  amount  to  the  $4,41 1 
25  cents,  which  he  stated  he  had  lost  by  the  sale  ;  the  Government 
not  having  (at  that  time)  allowed  him  for  the  difference  between  the 
amount  of  sales,  and  the  face  of  the  notes  ;  and  on  which  loan  he  paid 
bank  interest :  the  bank  made  this  last  loan  chiefly  in  view  of  such 
loss,  as  they  conceived  it  an  extremely  hard  case. 

A  letter  from  Robert  Brent,  Paymaster  General  of  the  United 
States,  was  produced  by  the  defendant,  and  read;  dated  July  20th 
18 18,  in  which  the  writer  promises  that  a  balance  of  $14,527  64 
paid  by  the  defendant  to  the  troops  on  the  western  frontier,  but  not 
credited  to  him,  for  want  of  the  receipt  of  Allen,  a  deputy  paymaster, 
shall  be  passed  to  his  credit.  In  connexion  with  this  letter,  a  paper 
was  read,  alleged  by  the  defendant  to  be  an  enclosure  in  the  above, 
and  therein  referred  to,  as  containing  a  certificate  of  Allen.* 


*  “  Army  T ay  Office,  City  of  Washington,  July  20th,  1813. 

“  Sir, 

“  I  have  barely  time  to  acknowledge  the  receipt  of  your  two  let¬ 
ters  of  the  9th  instant,  by  Major  Allen,  district  paymaster,  with  the 
inclosures. 

“  Major  Allen  will  deliver  a  copy  of  a  certificate,  which  he  has 
filed  with  certain  vouchers  therein  described,  and  which  will  be 
passed  to  your  credit,  although  taken  in  his  favour  ;  the  circum¬ 
stances  of  the  case,  and  the  present  state  of  alarm  with  us,  have 


17 


The  District  Attorney  objected  to  these  papers,  as  not  being  within 
the  act  of  3d  March,  1797,  “to  provide  more  effectually  for  the  set¬ 
tlement  of  accounts  between  the  United  States  and  receivers  of 


seemed  to  point  to  the  mode  adopted  respecting  these  vouch¬ 
ers  as  the  most  advisable. 

With  sentiments  of  great  respect,  I  have  the  honour  to  be, 

Sir,  your  most  ob’t.  Serv’t. 

“  ROBERT  BRENT,  P.  M.  A. 

“  His  Excellency  D.  D.  Tompkins,  Esq.  Gov.  of  the  State  of  New- York,  Albany. 

“  City  of  Washington,  July  20th,  1813. 

“  MEMORANDUM 

“  The  following  described  vouchers,  although  taken  in  my  name 
and  favour,  should  go  to  the  credit  of  Daniel  D.  Tompkins,  Esquire, 
Governor  of  the  State  of  New  York  ;  the  money  paid  out  on  them 
having  been  advanced  by  Governor  Tompkins  to  A.  Yelverton,  a 
militia  regimental  pay-master.  They  are  not  charged  by  me,  nor 
do  1  claim  any  credit  for  them.  The  reason  of  their  being  taken 
in  my  name  is,  that  it  was  at  the  time  contemplated  to  regularize 
them  through  me,  by  receipting  to  Governor  Tompkins  for  their 
amount,  as  so  much  cash,  and  then  charging  the  said  vouchers  in  my 
accounts,  and  having  them  passed  to  my  credit. 


Field  and  Staff, 

.  .  $1,931  43 

Capt.  Sprague’s  Co. 

1,421  43 

Capt.  Mulholland’s  Co. 

.  .  .  1,855  76 

Capt.  Davidson’s  Co. 

2,453  15 

Capt.  Burgess’  Co. 

.  .  .  960  35 

Capt.  Mead’s  Co. 

1,868  87 

Capt.  Hopping’s  Co. 

2,467  29 

Capt.  Forbes’  Co. 

1,869  36 

$14,527  64 

“  Fourteen  thousand  five  hundred  and  twenty-seven  dollars  and 
•  sixty-four  cents. 

“  Nathaniel  Allen, 

District  Pay-Master  of  Militia  of  JV.  York'. 
“Witness- — Nathaniel  Frye,  jun.” 

3 

M  -  .  -V.  '  .a  W  *  1 


18 


public  money  which  declares  that  no  item  of  set  off  shall  be  pleaded 
against  a  demand  of  the  United  States,  unless  it  has  first  been  pre¬ 
sented  to  an  accounting  officer  of  the  treasury,  and  disallowed  : — 
The  Paymaster  General  i9  not  such  an  officer.  The  paper  alleged 
to  be  an  enclosure  is  without  official  certification,  and  is  not  identi¬ 
fied  as  being  the  enclosure  referred  to  in  the  letter. 

The  defendant’s  counsel  contended,  in  reply,  that  the  Paymaster 
General  is  an  accounting  officer  within  the  meaning  of  the  act  ;  he 
being  the  only  officer  with  whom  defendant  could  account  for  moneys 
advanced  for  pay.  That  from  Colonel  Brent’s  letter,  it  appeared 
that  the  item  claimed  had  been  allowed,  but  from  the  account  as 
stated  by  the  treasury,  it  had  been  omitted  to  be  credited. 

The  Court  admitted  the  objection  of  the  District  Attorney,  and  de¬ 
cided  that  these  papers  must  be  excluded. 

George  Griswold 

Was  a  Director  of  the  Bank  of  America  in  1814.  It  was 
clearly  understood  that  defendant  was  personally  liable  for  the 
$150,000  loaned  by  the  Bank.  The  defendant  was  to  make  good 
any  deficiency  on  the  sale  of  the  government  securities.  The 
amount  of  Treasury  notes  was  about  $160  000.  The  Bank  thought 
they  were  more  sure  of  getting  the  amount  from  government  by 
holding  defendant  as  a  sort  of  hostage.  They  had  respect  to  his 
official  situation.  Witness  thinks  that  if  defendant  had  presented 
the  treasury  notes  of  $165,000,  for  his  private  use,  it  is  probable  the 
Bank  would  have  doubted  whether  they  were  likely  to  make,  by  the 
transaction,  the  amount  of  the  discount :  but  they  understood  the 
money  w  as  to  be  appropriated  to  the  public  defence.  The  differ¬ 
ence  between  the  Bank  interest  on  the  loan  and  the  interest  drawn 
by  the  Treasury  notes  was  charged  to  defendant’s  private  account. 
Witness  knows  that  on  the  settlement  there  was  a  balance  due  by 
the  defendant  to  the  Bank — thinks  it  was  about  $4,000.  The 
Bank  loaned  this  amount  afterwards  to  defendant  on  his  private  per¬ 
sonal  security,  because  they  thought  the  case  extremely  hard. 


19 


Gen.  Nicholas  Fish, 

Chairman  of  a  Committee  of  the  Corporation  of  New- York,  called  the 
Committee  of  Defence , 

In  reply  to  queries  of  the  defendant  stated,  that  in  December, 
1814,  the  Corporation,  through  the  committee,  had  applied  to  the 
Governor  to  call  out  the  militia  for  the  protection  of  the  city  ;  that 
witness  had  urged  him  to  do  so,  and  had  pledged  the  honour  of  the 
corporation  to  pay  them.  About  20,000  men  were  called  out. 
When  asked  whether  the  Corporation  had  redeemed  the  pledge, 
witness  replied  that  he  understood  that  the  troops  had  been  paid, 
or  nearly  paid. 

JoSIAH  ShIPPEY 

Testified  to  certain  books  in  MS.  being  true  copies  made  by 
himself  of  correspondence  between  the  defendant  and  different 
officers  of  government. 

The  District  Attorney  objected  to  these  books  being  read,  as 
the  original  letters  were  in  court,  and  could  be  produced. 

The  objection  was  allowed. 

Defendant’s  counsel  then  produced  a  statement  of  his  own  ac¬ 
count,  said  to  have  been  presented  by  him  at  the  Department  of 
War,  and  now  purporting  to  proceed  from  that  department,  but  not 
duly  exemplified,  and,  in  support  of  its  authenticity,  called 

Samuel  H.  Aiken, 

Who  testified  that  the  paper  was  in  the  handwriting  of  his 
brother,  a  clerk  in  the  War  Department. 

The  District  Attorney  objected  to  this  paper  as  incompetent  evi¬ 
dence,  and  the  Court  excluded  it. 

Henry  Eckford,  Naval  Architect, 

Testified,  that  he  had  had  extensive  dealings  with  the  government 
during  the  late  war  ;  that  they  had  readily  consented  to  submit  the 


20 


accounts  in  dispute  to  arbitration  ;  and  that  a  balance  of  $494,000 
awarded  by  the  arbitrators  in  his  favour  was  promptly  paid ;  but 
government  had  allowed  him  neither  interest,  nor  any  Gredit  for  loss 
on  treasury  notes. 

Davtd  Dunham 

Had,  at  d  fife  rent  periods,  during  the  years  1813  and  1814,  en¬ 
dorsed  for  the  defendant  for  sums  to  be  advanced  by  the  banks  : 
at  one  time,  the  note  endorsed  was  to  pay  ior  the  transportation 
of  arms,  either  to  New  Orleans  or  to  the  frontier  of  this  state.  He 
has  understood  that  defendant’s  property  in  the  city  has  since 
be-msoldon  execution,  by  the  Manhattan  Bank,  for  the  sum  then 
borrowed.  [ District  Attorney  objected  to  this r  as  hearsay  testimony, 
and  it  was  excluded.]  Witness  was  at  one  time  employed  by  Cal¬ 
lender  Irvine,  Commi.-sary  General,  under  a  written  agreement,  to 
purchase  a  certain  quantity  of  blankets  for  the  army,  and  was  allowed 
by  Irvine,  a  commission  of  2i  per  cent.  Government  allowed  him 
do  interest  ;  and  the  interest  exceeding  the  commission,  he  was  a 
loser  by  the  bargain.  It  was  usual,  in  agencies  of  that  kind,  for  mer¬ 
chants  to  allow  that  commission.  He  continued  to  purchase  at  times 
for  Cox  and  Irvine,  until  Mr.  Russel  was  made  Commissary  of  Pur¬ 
chases.  When  defendant  applied  at  a  certain  time  to  witness,  to 
endorse  for  him,  he  stated  that  it  was  for  a  balance  arising  from  de¬ 
preciation  of  treasury  notes  ;  he  thinks  at  the  Bank  of  America. 
This  testimony  was  received  without  objection. 

Major  Darby  Noon 

Was  Deputy  Quarter  Master  General  of  the  State  of  New-York. 
from  \pril  to  October,  1812,  and  all  the  Quarter  Master’s  business 
was  done  through  that  department.  He  paid  out,  by  order  of  the 
defendant,  $50,000.  He  settled  his  accounts  by  vouchers  to  the 
War  Department  only. 

Colonel  James  B.  Murray 

Has  examined  the  books  of  the  Corporation  ;  the  Corporation  are 


21 


credited  by  Government  with  brokerage  ;  and  charged  eighty,  for 
every  hundred  of  the  six  per  cent,  stock. 

The  amount  expended  by  them  is,  $1028  183  75 


For  which  they  received  6  per  cent,  stock, 
Interest,  .  . 

Treasury  notes,  . 

Cash  suspended,  . 


1100,009  87 
10,816  25 
53,000  00 
9,173  85 


1172,999  97 

Government  voluntarily  sent  on  these  funds  on  5th  June,  1815; 
by  which  the  Corporation  made  a  clear  gain  of  $162,000.  This 
testimony  was  objected  to,  because  the  books  themselves  ought  to 
be  produced  ;  and  the  Comptroller  of  the  city  examined.  The  ob¬ 
jection  was  allowed  to  be  valid,  and  the  account  withdrawn. 

[Here  the  Court  adjourned.] 

TUESDAY  MORNING,  JUNE  4th. 

[Testimony  continued.] 

Samuel  H.  Aiken,  Paymaster  for  District  of  JYew-York, 
Received  from  the  deft,  and  paid  to  the  Jersey  militia,  $100,000 

do.  do.  do.  Regular  army,  100,000 

He  understood  that  there  was  paid  to  the  cadets  at 

West  Point,  and  the  foundery  at  Springfield,  25,000 

The  latter  part  of  this  testimony  was  objected  to  by  the  District 
Attorney. 

Witness  said  if  the  Jersey  troops  were  paid  by  the  Corporation, 
they  must  have  been  twice  paid  ;  for  witness  paid  them  once  with 
money  received  from  defendant.  All  the  above  sums  were  paid  in 
current  money  of  the  city  of  New-York,  in  drafts  on  the  banks  :  no 
moneys  were  ever  paid  by  him  in  depreciated  currency.  Recollects 
defendant’s  advancing  money  to  Colonels  Post  and  Russel.  Defend¬ 
ant  was  very  much  pressed  for  money  for  the  public  exigencies. 

Benjamin  Romaine 

Was  Quarter  Master;  his  department  was  occasionally  in  distress 
for  funds  ;  and  witness  borrowed  of  the  Manhattan  bank,  by  order 


22 


of  his  commanding  General.  Lewis,  $5000.  After  two  or  three  ap¬ 
plications,  Government  allowed  him  the  discount,  which  he  paid 
the  bank.  The  bank  refused  to  lend  the  money  to  Government, 
but  lent  it  to  witness,  on  his  note  with  an  endorser. 

Robert  Swart  wout 

In  1814  was  Quarter  Master  General  of  the  United  States;  he 
made  a  Government  draft  of  $100,000  on  the  bank  of  Utica,  which 
he  understood  from  Mr.  Monroe  was  paid  with  funds  provided  through 
the  defendant;  it  was  drawn  in  August,  1814,  and  paid  in  November 
of  the  same  year. 

In  the  course  of  the  war,  witness  borrowed  money  on  treasury 
notes,  and  lost  three  thousand  dollars  by  the  depreciation  ;  which 
sum  has  since  been  allowed  him  by  special  act  of  Congress  for  that 
purpose. 

George  Newboi.d. 

The  loan  at  the  Bank  of  America  was  a  private  concern  ;  no 
account  was  opened  with  the  Government. 

Samuel  Flewwelling 

Was  Cashier  of  Manhattan  Bank  in  1814;  recollects  two  loans 
made  to  the  defendant,  but  not  accurately  as  to  the  date,  or 
amount;  believes  it  was  about  December,  and  that  the  sums  were 
$100,000  and  50,000.  The  bank  received  i  per  cent,  on  these 
loans,  which  was  given  gratuitously,  as  a  compensation  for  the 
trouble  incurred  in  drawing  the  necessary  papers,  &c.  (The 
witness  was  entitled  to  a  part  of  that  gratuity,  and  recovered  it  from 
the  bank,  by  a  suit  at  law.)  The  loans  were  made  on  treasury 
notes,  which  the  bank  was  authorized  to  sell  at  par  ;  the  proceeds 
were  deposited  in  bank,  to  the  credit  of  Government,  upon  which 
Government  drew.  The  treasury  notes  were  sold  in  1813.  The 
bank  had  one  third  of  the  Government  deposits.  The  bank  re¬ 
ceived  only  the  above  i  per  cent,  on  the  above  loans  ;  but  great 
advantages  from  the  United  States  ;  as  at  least  one  third  of  the 
deposits  of  the  United  States  were  there  made. 

Jacob  Barker. 

In  1814,  the  General  Goverment  found  very  great  difficulty  in 
raising  money  for  the  prosecution  of  the  war.  I  borrowed  large 


23 


sums  for  their  use  and  had  in  all  cases  to  give  security  in  addition 
to  the  stock  received  from  them.  Of  the  City  Bank  I  borrowed 
half  a  million  of  dollars,  and  had  to  pay  them  fifty  thousand  dollars 
of  my  own  money  in  addition  to  all  the  stock  I  received  from  govern¬ 
ment  for  the  said  half  million  of  dollars,  to  secure  them  against  de¬ 
preciation  of  the  government  stock  :  and  to  the  Mechanics’  Bank  I 
mortgaged  my  real  estate  for  the  same  object.  These  difficulties 
were  greatly  increased  by  the  conflagration  of  the  capital,  which 
took  place  on  the  24th  of  August,  1814  ;  also  by  the  government 
failing  punctually  to  pay  the  interest  on  the  national  debt,  and  to 
redeem  the  Treasury  notes  as  they  became  due  ;  and  this  was 
greatly  aggravated  by  Mr.  Dallas’  report  to  Congress,  in  which  he 
declared  the  nation  had  dishonoured  its  own  paper,  and,  eventually, 
that  the  nation  was  bankrupt ;  so  deep  did  he  make  the  impression, 
that  he  found  himself  totally  unable  to  borrow  money,  for  which 
purpose  he  visited  New  York  the  latter  part  of  1814,  or  early  in 
1815.  Witness,  however,  thinks  that  a  loan,  to  a  moderate  amount, 
might  have  been  obtained  by  a  competent  agent,  on  the  hypotheca¬ 
tion  of  an  amount  of  Treasury  notes  sufficient  to  make  up  the  de¬ 
preciation,  and  to  guard  against  further  depreciation,  viz.  that  on 
$200,000  a  loan  of  $150,000  might  have  bden  had.  Witness  ne¬ 
gotiated  Treasury  notes  for  the  defendant  at  a  considerable  dis¬ 
count  :  this  was  at  the  close,  or  immediately  after  the  war. 

William  Welling 

Went  on  to  Washington  the  24th  of  August,  1816,  as  agent 
for  Defendant,  to  obtain  a  settlement  of  his  accounts,  and  remained 
there  a  longtime,  endeavouring  to  effect  that  object.  [The  paper  in 
this  cause,  called  the  Defendant’s  account  current,  is  a  transcript  of  an 
account  which  witness  presented  to  Mr.  Hagner,  as  witness  believes.] 
In  the  fall  of  1816,  Mr.  Hagner  observed  to  witness,  that  he  had 
better  leave  Washington,  as  there  was  no  use  in  his  waiting  there. 
Defendant  urged  him  not  to  do  so  until  he  had  obtained  a  settlement, 
as  Defendant’s  character  was  suffering  for  want  of  it.  Witness  did 
not  succeed  in  getting  a  settlement.  Mr.  Hagner  asked  him  if  he 
had  a  personal  knowledge  of  the  items  of  the  account  he  presented, 


24 


to  which  witness  replied  he  had  not.  Mr.  Hagner  said  that  there 
would  be  due  the  defendant  about  eleven  thousand  dollars,  but  that 
it  could  not  be  paid  until  farther  papers  were  received.  On  cross- 
examination,  the  witness  could  not  identify  the  paper  shown  him,  as 
a  transcript  of  the  account  he  presented  to  Mr.  Hagner,  or  identify 
the  items  therein  contained.  Witness  was  asked  by  a  juror,  whether 
he  considered  the  Treasury  Department  as  seeking  to  evade  a  set¬ 
tlement — to  which  he  replied  that  he  did  not. 

Here  the  testimony  rested  on  the  part  of  the  defence. 


Thomas  R.  Mercein 

Was  examined,  on  behalf  of  the  United  States.  He  was 
formerly  Comptroller  of  the  city,  and  Treasurer  to  the  Com¬ 
mittee  of  Defence  in  1814.  The  total  amount  expended  by  the 
Corporation,  for  defence,  was  $947,570  57.  Of  this  amount  they 
were  allowed  by  government  $933,000  90 — the  balance  being  sus¬ 
pended.  Witness  went  to  Washington,  on  behalf  of  the  corporation* 
to  effect  a  settlement.  When  the  corporation  advanced  the  money, 
no  express  agreement  had  been  made  with  government,  but  there 
had  been  a  general  understanding  that  whatever  was  properly  dis¬ 
bursed  should  be  refunded.  When  witness  set  out  for  Washington, 
in  Dec.  1814,  government  6  per  cent,  stock  had  sunk  as  low  as  77 
per  cent.  He  pressed  the  treasury  for  stock  at  80  per  cent,  (except 
$53,000  of  treasury  notes.)  He  claimed  a  subscription  to  the  loan 
of  twenty-five  millions,  on  the  same  footing  as  those  most  favoured. 
Mr.  Dallas  at  first  refused  to  concede  to  such  arrangement,  but 
referred  the  witness  to  the  President;  who  finally  consented,  and 
the  transfer  was  made  accordingly.  This  arrangement  was  effected 
in  January,  1816,  and  a  written  note  of  it  made  at  the  time  by 
the  witness,  but  no  writing  was  signed  on  behalf  of  the  govern¬ 
ment.  The  stock  was  received  five  days  before  the  peace.  Arrears 
of  interest  on  the  stock  were  also  received,  and  nearly  all  the 
suspended  items  in  the  Corporation’s  account  were  subsequently 
allowed.  A  supplemental  account,  of  about  $27,000,  was  ren¬ 
dered  by  the  corporation  to  government,  for  injury  done  to 
land  of  theirs,  the  amount  of  which  could  not  before  be  ascertained. 
This  was  allowed  and  paid.  No  interest  was  allowed  by  govern- 


25 


meat  in  any  of  the  settlements.  The  whole  amount,  however,  was 
expended  in  a  short  time,  from  August,  1814,  to  January,  1815. 
The  Corporation  raised  the  money  they  expended  by  loans  from 
individuals,  on  bonds  drawn  by  the  Corporation,  which  bore  interest 
at  7  per  cent. — accruing,  though  not  stated  to  be  payable  until  1st 
March,  being  half  yearly.  The  account,  though  before  withdrawn 
by  the  Defendant’s  counsel,  was  exhibited  to  the  witness,  and  he 
was  examined  thereon,  and  the  items  of  which  he  stated  to  be  sub¬ 
stantially  correct. 

The  Corporation  books,  showing  the  general  defence  account, 
were  produced  and  read. 

Testimony  resumed  on  the  part  of  the  Defence. 

Col.  Richard  Platt 

Had  no  connection  with  the  army  before  31st  December,  1817. 
When  he  settled  his  accounts,  it  was  by  reporting  to  the  Paymaster 
General,  and  the  accounts  were  by  him  sent  to  Mr.  Lee. 

Defendant  produced  and  offered  to  read  the  correspondence  between 
him  and  the  Treasury  Department. 

WEDNESDAY  MORNING,  JUNE  5. 

The  following  letters  from  the  War  Department  were  produced 
and  read  : — • 

(COPY.) 

“  Department  of  War,  Sept.  1st,  1816. 

“  Sir, 

“  I  have  the  honour  to  acknowledge  the  receipt  of  your  letter  of 
the  25th  ultimo.  All  your  accounts  that  were  on  the  files  of  this 
office  have  been  sent  to  the  accountant,  with  directions  to  credit  you 
with  the  whole  amount  of  the  treasury  notes  deposited  by  you  with 
the  several  banks,  and  to  hasten  the  settlement  of  the  accounts,  that 
you  might  be  delivered  from  any  farther  responsibility. 

4 


26 


“  I  avail  myself  of  this  opportunity,  to  return  to  you  the  thanks 
of  the  President,  as  well  for  that  zealous  and  able  co-operation  in 
supporting  the  measures  of  the  general  government,  which,  in  your 
official  character,  you  always  so  promptly  afforded,  as  for  the  inde¬ 
fatigable  personal  exertions,  by  which,  at  the  most  critical  periods, 
you  were,  in  a  manner  so  honourably  for  yourself,  and  so  usefully 
for  your  country,  enabled  to  support  the  public  credit  within  the 
state  of  New- York.  For  myself,  sir,  I  beg  you  to  accept  the  assu¬ 
rances  of  the  highest  respect 

“  I  have,  &c. 

(Signed)  “  G.  Graham,  Chief  Clerk. 

“Gov.  Daniel  D.  Tompkins,  New-York. 

“  I  hereby  certify,  that  the  foregoing  is  a  true  copy  from  tire 
records  of  the  War  Department.  In  testimony  whereof,  I  have 
hereunto  set  my  hand,  and  have  caused  the  public  seal  of  the  said 
department  to  be  affixed,  this  twenty-seventh  day  of  May,  in  the 
year  eighteen  hundred  and  twenty-two. 

“  J.  C.  Calhoun.” 

(COPY.) 

“  Deparraent  of  War,  April  10th,  1815. 

“  Sir, 

“  1  have  the  honour  to  acknowledge  the  receipt  of  your  letter, 
requesting  to  be  released  from  the  command  of  the  third  military 
district,  and  you  are  released  accordingly.  It  is  with  great  pleasure 
I  add  an  expression  of  the  President’s  thanks,  for  the  patriotic, 
active  and  able  support,  which  you  have  on  all  occasions  given  to 
the  measures  of  government,  during  the  late  war. 

“  I  have  the  honour,  &c. 

(Signed)  “  A.  J.  Dallas. 

“Gov.  Daniel  D.  Tompkins,  of  New-York. 

“  I  hereby  certify,  that  the  foregoing  is  a  true  copy  from  the 
records  of  the  War  Department.  In  testimony  whereof,  I  have 
hereunto  set  my  hand,  and  caused  the  public  seal  of  the  said  depart¬ 
ment  to  be  affixed,  this  twenty-seventh  day  of  May,  in  the  yeai 
eighteen  hundred  and  twenty-two. 

“  J.  C.  Calhoun." 


Here  the  evidence  closed. 


27 


SPEECH  OF  THE  VICE  PRESIDENT. 

The  Defendant  then  proceeded  to  sum  up  the  defence,  in  per¬ 
son,  in  a  speech  of  which  the  reporter  regrets  he  has  been  able, 
to  recover  but  a  small  part. 

He  dwelt  at  great  length  upon  the  circumstances  in  which  he 
found  himself  at  the  opening  of  the  late  war  ;  the  pressure  and 
multiplicity  of  the  duties  which  subsequently  devolved  upon  him, 
“  while  called  to  administer  the  civil  and  military  government  of 
a  million  of  people,  pressed  on  every  side  by  veteran  armies,  and 
commanding  at  the  same  time  upwards  of  twenty  thousand  troops 
in  the  service  of  the  United  States.”  He  stated  expressly,  that 
the  advances  of  public  moneys  had  been  unsought  by  him,  and 
that  it  was  in  consequence  of  urgent  applications  from  Washing¬ 
ton,  (in  letters  which  he  offered  to  produce,)  he  had  consented 
to  become  first  the  depository  of  those  moneys,  and  then  the  organ 
for  their  distribution  :  fearing  the  accounts  might  run  into  con* 
fusion,  he  had  repeatedly  applied  for  an  accountant  to  be  allowed 
him,  but  without  success  : — had  been  held  accountable,  against  his 
most  earnest  remonstrance,  for  the  expenditures  of  every  subordi¬ 
nate  officer  it  became  his  duty  to  employ  : — that  relying  on  the 
plighted  faith  of  the  Corporation,  he  had,  at  their  own  urgent  soli¬ 
citation,  brought  twenty  thousand  men  to  the  defence  of  this  city  ; 
and  that  the  Corporation  had  broken  their  faith,  and  betrayed  his 
trust  : — that  he  had  long  apprehended  his  affairs  were  in  danger  of 
embarrassment,  and  had  stated  to  Mr.  King,  that  if  he  went  on,  he 
must  be  ruined  ;  but  that  he  was  unable  to  resist  the  eloquence  of 
that  gentleman’s  patriotic  language  ;  and  the  urgent  and  evident 
pressure  of  the  public  necessity. — That  he  had  lost  large  sums  through 
the  want  of  legal  vouchers,  which,  in  the  hurry  of  the  moment,  he 
had  neglected  to  take,  or  had  subsequently  mislaid  :  having  been 
constantly  assailed,  on  every  side,  with  unceasing  and  importunate 
applications  for  money  for  the  public  service  : — he  had  generally 
endeavoured  to  secure  duplicate  receipts  ;  one  set  of  which  had 
been  forwarded  to  Washington,  and  the  other  retained  in  his  own 
hands ;  that  when  he  had  afterwards  written  to  the  treasury  for  a 
statement  of  his  accounts,  he  had,  to  his  utter  amazement,  received 
a  reply,  stating,  that  there  were  there  no  documents  to  support  the 
credits  he  had  claimed  ;  in  consequence  of  this,  he  had  sent  on  by 


28 


a  confidential  friend,  the  duplicates  he  had,  till  then,  intended  to 
reserve  for  himself,  (the  receipt  of  which  had  been  acknowledged,) 
thus  putting  all  proofs  out  of  his  hands,  and  surrendering  to  the 
honour  and  uprightness  of  the  Government  the  whole  settlement  of 
his  account  ;  nor  had  he  so  much  as  seen  a  statement  of  it,  until  a 
few  days  before  the  present  suit  came  to  trial. 

With  respect  to  the  double  credit  on  which  the  present  action  was 
founded,  it  arose,  as  he  had  already  explained,  from  a  mistake,  not 
of  his,  but  of  the  Department’s  own.  The  mistake  had  been  confessed, 
and  he  had  received  a  letter  of  apology  from  Mr.  Hagner,  which  was 
then  present  in  court,  and  could  be  produced,  if  the  jury  wished  to 
see  it.  He  had  always  been  desirous  of  a  settlement  ;  had  sought  it, 
pressed  it,  urged  it,  entreated  it ;  but  that  while  others  were  set¬ 
tled  with,  he  had  constantly  been  put  off,  his  account  kept  open,  and 
his  name  covered  with  obloquy,  as  a  public  defaulter.  “  Yes, 
Gentlemen,  for  want  of  the  settlement  of  these  accounts,  my  name 
was  loaded  with  innumerable  calumnies  ;  falsehoods  in  every  form, 
and  daily  increasing,  were  heaped  upon  it  from  every  side  ;  the 
billows  of  calumny  were  rolling  over  my  head,  mountains  high,  and 
spreading  from  Maine  to  Georgia,  and  from  the  seaboard  to  the 
farthermost  mountains  of  the  interior  ;  and,  to  crown  the  whole,  there 
was  I,  compelled,  as  I  occupied  my  seat  in  the  senate,  to  hear  my  name 
read  before  my  face,  in  the  list  of  public  defaulters  ;  and  that  for 
the  very  sum  which  I  had,  on  my  own  responsibility,  borrowed  from 
the  Manhattan  Bank,  for  the  transportation  of  arms  to  New-Orleans, 
(and  for  which  every  dollar’s  worth  of  my  city  property  has  since 
been  sold  by  execution,) — I  had  to  hear  it — to  hear  it  in  silence.” 

The  defendant  then  went  on  to  comment  upon  the  several  parts 
of  the  testimony  ;  and  having  stated  many  things  in  explanation, 
which  cannot  here  be  detailed,  he  adverted,  in  the  close,  to  an  ob¬ 
jection  which  might  be  urged  against  his  claim,  from  the  fact  that  it 
had  not  been  advanced  at  an  earlier  date  ;  to  which  he  answered, 

“  Tell  me  not,  gentlemen,  tell  me  not,  I  beseech  you,  when  it  was 
in  my  power,  and  the  money  was  in  my  hand,  thatt/ieul  should  have 
deducted  my  just  dues ;  that  then  I  should  have  exacted  and  taken 
my  pound  of  flesh  ;  from  whom  ? — a  poor,  emaciated,  distracted 


29 


country,  which  I  at  least  loved,  and  which  was  already  reduced  to 
mere  skin  and  bones.  If,  at  that  time,  I  did  not  deal  with  my  coun¬ 
try  as  with  a  sharper,  who,  when  his  disasters  were  ended  and 
his  misfortunes  over,  would  recoil  upon  his  benefactor  and  stab 
him  to  the  heart — if,  when  its  destiny  was  in  my  palm,  the  whetted 
knife  in  my  hand,  and  the  helpless  debtor  laid  prostrate  at  rny  feet, 
I  did  not,  like  others,  carve  out  my  pound  of  flesh,  reproach  me 
not  with  it.  If  this  even  were  a  grievous  fault,  have  I  not,  gentle¬ 
men,  grievoifsly  answered  it  ?  But  it  was  no  fault.  Had  I  done 
this,  there  would  have  been  a  deficiency  of  two  or  three  hundred 
thousand  dollars.  The  cadets  of  your  nation  would  have  been  left 
to  freeze  and  hunger  in  the  Highlands  ;  the  manufactory  of  arms  at 
Springfield,  which  was  already  at  a  stand,  and  on  the  eve  of  mutiny, 
must  have  been  broken  up  ;  the  gallant  army  of  Niagara,  that  had 
so  freely  devoted  its  blood  for  you  the  preceding  campaign,  would 
have  been  disbanded  by  starvation  ;  and  upwards  of  twenty  thousand 
men  in  arms,  irritated  and  insulted  by  the  violated  faith  of  your  cor¬ 
porate  authorities,  and  determined  not  to  leave  the  city  unrewarded 
whilst  there  was  money  in  the  vaults  of  your  Banks,  would  have 
been  let  loose  upon  this  place.  I  shudder  when  the  probable  con¬ 
sequences  are  revived  in  my  recollection.  Little  did  I  think  (how  could 
any  generous  mind  anticipate  ?)  that  when  the  wounds  of  a  bleeding 
country  were  healed,  when  it  was  replaced  upon  its  feet,  its  constitu¬ 
tion  invigorated,  its  health  restored — when  its  honour  and  fame 
abroad  and  its  prosperity  at  home  were  exalted,  when  its  finances 
were  replenished  and  its  coffers  full,  when  it  was  revelling  in  green 
pastures,  and  indulging  in  the  refreshing  shades  of  the  rich  valley's, 
that  I,  who  had  regarded  myself  as  one  of  its  watchful  and  faithful 
attendant  physicians  in  its  adversity,  should  be  singled  out  as  the 
victim  of  its  persecution  ;  that  I  alone,  with  my  family,  should  be 
outlawed  from  its  justice,  and  be  banished  and  driven  from  its  society, 
to  roam  and  mourn  and  starve  upon  the  barren,  bleak  mountains  of 
despair  !  I  did  not  so  anticipate  ;  and  1  thank  my  God  1  could  not. 
The  topic,  however,  is  unwelcome,  and  I  dismiss  it. 

“Gentlemen,  I  am  no  orator  ;  but,  as  you  all  have  witnessed  on 
this  occasion,  (and  most  of  you,  some  of  you  I  may  certainly  say, 

. 


30 


do  know  from  long  acquaintance  and  experience,)  a  plain  matter-of- 
fact  man,  that  speak  and  act  right  on  what  I  know,  feel,  and  am  able 
to  prove.  But  had  my  lips  ever  been  touched  by  a  live  coal  froni 
Minerva’s  altar,  or  had  there  been  given  to  my  tongue  that  force 
and  felicity  of  utterance  which  Providence  denies  to  all  but  a 
ehosen  few,  and  would  my  wounded  and  insulted  feelings  sustain  me 
through  the  sad  recital,  without  melting  me  to  tears,  ox  suffocating 
me  with  indignation,  I  could  recount  a  long  ten  years’  series  of  fears, 
anxieties,  perplexities,  sorrows,  sicknesses,  blighted  prospects,  and 
wounded  feelings,  inflicted  by  these  accumulated  and  protracted 
wrongs,  on  an  affecticnate  (and,  I  hope  I  may  be  permitted  to  add, 
an  amiable)  family,  as  well  as  myself,  that  would,  harrow  up  your 
souls — would  give  a  tongue  to  every  pang  we  have  suffered — and 
make  the  very  stones  rise  up  and  cry  aloud  for  justice  ! — I  forbear  ; 
as  well  because  I  am  inadequate  to  the  task,  as  because  I  assured 
you  in  the  opening  that  I  would  not  assail  your  passions,  or  ask  your 
sympathy  or  compassion  :  both  of  which  I  scorn.  I  seek  merely 
that  plain,  rational,  and  simple  justice,  which  the  Plaintiff  in  this 
cause  Dromptly  and  voluntarily  meted  out  to  all  others  ;  and  that  I 


demand  as  a  right. 

“  Before  I  sit  down,  let  me  caution  you  upon  one  subject.  When 
public  calumnies  are  propagated,  and  the  individual  slandered  is 
silent  and  resigned,  it  is  but  too  common  for  the  public  mind  to  be 
generally  and  unfavourably  impressed,  and  it  is  difficult  for  jurors 
to  devest  themselves  of  feelings  which  these  expressions  have  made. 
Permit  me,  therefore,  Gentlemen,  to  caution  you  against  these  im¬ 
pressions.  If,  influenced  by  them,  you  should  finally  do  me 
injustice,  you  will  inflict  but  little  additional  pain  upon  me  or  my 
family  :  we  have  already  suffered  all  that  the  utmost  stretch  of 
human  patience  and  kindness  can  endure.  But  beware,  Gen¬ 
tlemen,  lest,  influenced  by  considerations  of  this  nature,  or  by 
political  or  personal  feelings,  to  which  my  various  public  sit¬ 
uations  may  have  exposed  me,  you  do  not  place  beneath  your 


own  couch  a  thorn  ;  which,  though  it  may  not  bud,  or  blossom, 
or  disquiet  your  peace,  for  a  moment,  an  hour,  a  day,  a  month,  a 
year,  or  even  for  a  season,  yet  let  me  be  the  faithful  herald  to 
proclaim  to  you  now,  that  it  may  become  a  most  unwelcome  tor¬ 
mentor  of  a  dying  pillow.” 


31 


MR.  HOFFMAN’S  SPEECH. 

Josiah  Ogden  Hoffman,  Esq.  opened  the  defence,  on  the  part  oi 
the  Vice-President,  and  addressed  the  Jury  to  the  following  effect : — ■ 

Genteemen  of  the  Jury, 

After  the  able  and  eloquent  appeal  which  has  just  been  addressed 
to  you,  I  rise  with  diffidence,  and  not  without  embarrassment.  The 
elevated  station  of  my  client ;  his  long  and  eminent  public  services  ; 
the  unexampled,  but  deserved,  popularity  he  has  enjoyed  ;  the 
part  he  has  acted  in  events  associated  with  the  feelings  of  every  man 
that  hears  me  ; — all  these  things,  taken  in  connexion  with  the  circum¬ 
stances  in  which  he  is  this  day  presented  before  you,  are  calculated 
to  produce  emotions  that  cannot  be  suppressed.  A  citizen,  who,  in 
the  hour  of  his  country’s  extremity,  rendered  her  such  services  as  it 
was  out  of  the  power  of  any  other  individual  to  accomplish  ;  a  patriot, 
who  '■saved  this  state  when  it  was  threatened  with  invasion — who 
redeemed  the  credit  of  the  general  government,  when  its  own  offi¬ 
cers  pronounced  it  bankrupt — the  darling  of  the  people — and  holding, 
by  their  free  suffrage,  the  second  station  in  this  republic — stands 
before  you  a  ruined  man.  His  large  patrimony,  increased  by  long 
professional  toil,  seized  and  sold  ;  the  prospects  of  his  family 
blighted  and  gone;  his  health  undermined  ;  his  good  name  vilified  ; 
and,  though  at  this  moment  Vice-President  of  these  United  States, 
unable  to  employ  counsel  to  defend  his  cause.  Yes,  gentlemen, 
I  appear  on  this  cause  ,  as  does  his  other  counsel,  unsolicited  by 
him,  a  volunteer  on  behalf  of  the  most  injured  of  men.  I  stand 
here,  because  1  am  resolved  that  no  individual,  with  such  claims 
upon  retributive  justice,  shall  want  an  advocate  because  he  is  too 
poor  to  employ  one.  Do  you,  on  hearing  this,  revert  to  his  public 
salary  ?  It  is  stopped  ;  stopped  for  the  very  balance  now  unjustly 
sued  for.  For  this  balance,  (by  their  own  confession  an  error  of 
the  treasury,)  he  has  been  reported  a  public  defaulter  ;  and,  by  the 
provisions  of  a  statute,  passed  perhaps  rashly,  and  certainly  most 
severe  in  its  operation,  his  salary,  the  only  remaining  support  of  a 
large  and  most  amiable  family,  is  suspended  till  this  account  is  set¬ 
tled.  Thus  is  he  left,  in  the  midst  of  embarrassments  incurred  by 
his  exertions  for  the  public  credit,  without  a  dollar  to  meet  his  daily 
expenses  ;  out  of  the  hundreds,  and  I  might  almost  say  the  thou 


32 


sands  of  agents,  who  made  fortunes  by  the  public  during  the  late  war, 
the  only  man  who  has  come  out  of  that  war  impoverished  and  a 
bankrupt.  I  have  known  Mr.  Tompkins  long  ;  I  knew  him  from 
the  beginning :  I  well  knew  his  talents,  his  integrity,  his  goodness 
of  heart :  I  knew,  also,  his  carelessness.  Regardless  of  the  value 
of  money,  he  never,  in  his  own  concerns,  used  that  caution  and 
observed  that  exactness  in  what  relates  to  it,  which  was  due  to 
himself,  and,  I  will  add,  to  his  family.  It  is  this  unhappy  negligence 
which  has  involved  him  in  all  the  difficulties  he  has  since  met  with. 

Gentlemen,  the  investigation  now  submitted  for  your  decision,  is 
one  desired  and  sought  by  my  client.  The  suit  has  been  brought 
at  his  own  solicitation  ;  and,  unless  I  am  grossly  deceived,  its 
result  will  be  such  as  to  administer  at  least  some  solace  to  a  case  of 
unmerited  and  unexampled  hardship,  which  nothing  can  effectually 
remedy. 

Gentlemen,  in  order  to  a  right  consideration — indeed,  to  any  thing 
like  a  clear  understanding,  ef  the  case  now  submitted  to  you,  it  is 
necessary  to  advert  to  the  situation  of  the  Defendant  during  the 
eventful  period  of  the  late  war  with  Great-Britain.  He  was  then 
Governor  of  the  greatest  state  in  the  Union — a  state  which  contain¬ 
ed  in  its  metropolis  the  highest  bait  for  the  cupidity  of  an  enemy, 
and  which  presented,  in  its  extended  line  of  frontier,  a  theatre  for 
the  most  momentous  military  operations.  This  state,  at  the  time 
of  the  declaration  of  war,  was  almost  literally  defenceless-  Though 
warned,  and  for  three  years  solicited,  by  the  letters  of  my  client, 
the  general  government  had  made  no  provision  whatever  to  meet 
the  emergency  ;  and  when  the  troops  were  called  out  into  the  field 
for  actual  operation,  they  had  not  a  tent  nor  a  camp  kettle.  The 
whole  responsibility  of  defending  the  city — of  supplying  the  army — 
and  supporting  the  public  credit,  fell  upon  the  Defendant  in  this 
cause.  To  him  the  government  looked  ;  to  him  the  people  cried. 
The  advances  of  the  public  funds  were  by  him  wholly  unsolicited; 
on  the  contrary,  they  were  pressed  upon  him  ;  and,  in  answer  to 
the  most  earnest  solicitations  of  the  government,  he  took  a  respon¬ 
sibility  such  as  no  man  before  or  since  ever  assumed.  He  did  it 
not  blindly.  You  have  heard  from  Mr.  King,  that  my  client  stated 


33 


*  4ft 

to  him  the  risk  he  was  running,  and  the  impending  danger.  But 
that  distinguished  Senator  met  his  remonstrance  with  the  voice  of 
true  patriotism  :  “  If  ruin  must  ensue,  let  it  ensue.  Standing  where 
you  stand,  it  is  your  duty  to  be  ruined  for  the  Republic  ;  better  that 
one  man  be  ruined  than  that  the  Republic  should  suffer.  Forget  your¬ 
self — forget  your  family  ;  trust  to  your  country  for  safety  ;  go  on 
and  do  your  duty.”  Gentlemen,  to  this  appeal  there  was  but  one 
reply  ;  you  find  it  in  the  toils,  in  the  assumed  responsibilities,  in  the 
subsequent  embarrassments,  and  in  the  final  ruin,  of  my  client. 

I  have  said  that  this  suit  arises  wholly,  and  confessedly,  from  a 
mistake  of  the  treasury.  It  is  for  a  balance  twice  credited  to  the 
Vice-President.  Did  he  demand  it  to  be  twice  credited  ?  No  ;  he 
did  not  even  know  of  the  credit’s  being  given.  You  have  heard  his 
explanation.  He  advanced  money  to  Major  Yelverton,  for  the  pay 
of  troops  under  Gen.  Porter;  the  sum  was  credited  by  the  auditor 
of  the  treasury  to  Yelverton’s  account,  not  to  that  of  the  De¬ 
fendant.  Subsequently,  by  order  of  the  comptroller,  the  sum 
was  passed  to  the  credit  of  Gov.  Tompkins,  as  in  justice  it  should 
have  been  at  first.  Thus  it  appears  as  a  double  credit — as 
such  is  reported  ;  and  for  this  my  client  is  proclaimed  a  public 
defaulter  ;  for  this  his  salary  is  stopped,  and  he  is  shamed  before 
the  world. 

Did  he  ever  claim  that  this  balance  should  be  allowed  in  his 
favour  ?  Never.  Does  he  now  claim  it  ?  Not  at  all.  He  allows 
the  balance  to  be  justly  charged  against  him.  But  he  does  claim 
that,  as  matter  of  set  off,  he  shall  be  allowed  interest  on  other  balances 
long  due  to  him,  and  the  ordinary  mercantile  commission  on  moneys 
received  and  paid  ; — received  without  solicitation — paid  at  the 
highest  personal  risk — and  the  receipt  and  disbursement  of  which 
have  proved  his  ruin. 

The  first  item  is  for  interest  on  a  balance  admitted  by  the  Trea- 
sury  Department  to  be  due  to  him  on  the  14th  of  December,  1814. 
The  admission  is  under  the  hand  of  Col.  Lear,  and  the  document 
in  support  of  it  has  been  satisfactorily  proved.  You  will  observe, 
gentlemen,  that  this  is  not  the  full  amount  then  claimed  by  the  de¬ 
fendant  ;  his  demand  was  for  upwards  of  forty-two  thousand  dollars  ; 
the  Department  suspended  thirty-eight  hundred  of  that  amount ; 

5 


34 


and  the  interest  now  claimed  is  only  on  the  balance  which  was  liqui¬ 
dated.  The  expenditures  which  went  into  this  account  were  made  in 
the  autumn  of  1812  ;  they  were  admitted  by  the  treasury  and  liquida¬ 
ted  in  1814  ;  but  not  paid  until  the  final  settlement  of  1816.  Here 
then  was  a  just  debt,  of  upwards  of  thirty-eight  thousand  dollars,  un¬ 
settled  for  four  years.  Have  we  not  a  right  to  the  interest  for  that 
time  ?  But  you  will  he  told  that  the  government  never  allows  in¬ 
terest.  And  why  not,  pray  ?  It  is  not  the  usage  of  the  Treasury 
Department.  But  what  have  we  to  do  with  iheir  usages  ?  Where 
is  the  law  for  such  a  usage  ?  On  what  authority  does  it  rest  ?  Is 
the  arbitrary  fiat  of  the  Secretary  of  the  Treasury  to  become  the 
law  of  the  land  ?  When  one  merchant  owes  another  a  balance, 
and  defers  payment,  the  law  of  every  country  allows  interest  on 
the  debt ;  why  should  not  the  same  law  apply  to  the  government 
which  binds  an  individual  ?  Shall  the  goverment  have  power  to 
say  to  me,  sir,  I  owe  you  a  just  balance  of  thirty  eight  thousand 
dollars,  but  I  shall  not  pay  it  you  for  these  four  years  to  come  ;  nor 
will  I  allow  you  a  cent  of  interest  ?  If  they  may  defer  four  years, 
why  not  twenty — why  not  an  hundred  ?  and  who  can  be  safe  in 
dealing  with  his  country,  or  who.  under  such  circumstances,  will 
dare  to  become  her  creditor  ?  During  the  whole  period  for  which 
we  here  claim  interest,  the  defendant  in  this  suit  was  a  creditor  to 
his  country — a  creditor  in  heavy  balances,  raised  by  his  influence, 
and  advanced  by  his  patriotic  zeal,  in  behalf  of  her  embarrassed 
credit  and  failing  resources.  The  debt  is  more  than  a  just  one  ; 
and  yet,  when  asking  simple  interest  on  the  time  he  was  kept  out  of 
it,  he  is  to  be  answered,  “Sir,  the  Treasury  pays  no  interest!” 
Gentlemen,  from  such  a  reply  we  appeal  to  you  :  we  have  demand¬ 
ed  a  judicial  investigation,  that  we  may  take  our  cause  from  the  de¬ 
cision  of  a  government  officer,  and  lay  it  before  a  jury  of  freemen. 
You  will  say  this  claim  is  just;  and  though  we  may  be  precluded 
from  enforcing  right  against  the  government,  we  must  insist  upon  the 
privilege  of  having  right  declared.  1  w  ish,  however,  to  be  distinctly 
understood,  that  we  claim  interest  on  this,  and  on  every  other  item 
of  the  account,  on  strict  legal  grounds  and  if  it  should  appear,  from 
the  transcripts  themselves,  that  the  defendant  had  funds  in  his 


35 


hands  belonging  to  the  United  States,  during  the  period  for  which 
interest  is  demanded,  I  readily  admit  the  claim  for  interest  is  not 
to  be  supported. 

The  second  item  of  set-off  is  for  interest  on  a  balance  of  a  lit¬ 
tle  more  than  four  thousand  dollars,  lost  by  the  defendant  on  the 
sale  of  Treasury  notes  by  the  Bank  of  America,  but  since  allowed 
to  him  by  the  government.  The  circumstances  under  which  this 
loss  was  incurred  have  appeared  from  the  testimony.  I  shall  not 
now  insist  upon  them,  since  our  demand  is  not  for  the  loss  itself, 
but  for  interest  on  this  amount.  To  have  refused  to  reimburse  a 
loss,  arising  under  such  circumstances,  would  have  been  injustice 
gross  and  palpable  ;  but  why  is  it  less  unjust  to  refuse  my  client  the 
interest  accruing,  and  of  which  he  was  deprived  for  more  than  five, 
years  ?  We  ask  that  interest  from  you. 

The  third  item  in  our  account  of  set-off  is  for  a  sum  of  money 
paid  by  the  defendant  to  troops  upon  our  frontier,  but  for  which  he 
was  deprived  (innocently  on  his  part)  of  the  requisite  sort  of 
voucher.  Of  the  payment  of  the  money  there  cannot  be  a  doubt—* 
nobody  pretends  to  doubt  it  ;■  but  owing  to  the  absence  of  the  regu¬ 
lar  deputy  paymaster,  (whose  individual  receipt  alone  could  be  al¬ 
lowed  as  a  regular  voucher,)  a  receipt  was  taken  at  the  time  from 
another  in  his  name.  Mr.  Allen,  the  deputy  paymaster,  alarmed  by 
the  strictness  of  the  accounting  officers  of  the  Treasury,  refused  to 
substitute  his  own  receipt  for  that  which  had  been  taken  in  his 
name,  but  promised  to  explain  the  facts  when  settling  at  Washing¬ 
ton. 

Had  we  not  been  precluded  from  laying  Mr.  Brent’s  letter  before 
you,  we  should  have  shown  that  such  explanation  was  made, 
the  transaction  understood,  and  the  balance  acknowledged  ;  as 
it  is,  we  ask  where  is  the  credit  of  this  payment  in  the  defendant’s 
account  ? 

The  4th  item  is  for  a  charge  of  $20,000,  made,  as  we  contend,  by 
mistake  in  the  Government  account  against  the  defendant.  You 
have  seen  by  a  letter  from  Col.  Lear,  the  accountant  of  the  war 
office,  that  in  December,  1814,  a  settlement  was  made  of  the  de¬ 
fendant’s  accounts  ;  the  balance  liquidated,  audited,  and  duly  stated 


o6 


by  the  proper  officer.  The  balance’  allowed,  it  is  true,  was  less 
than  that  claimed  by  my  client  ;  but,  however  disappointed  by 
having  any  part  of  his  account  suspended,  he  relied,  at  least,  upon 
the  balance  certified  as  a  sum  settled,  and  no  more  to  be  called  in 
question.  He  had  a  right  so  to  rely.  But  lo  !  in  1820,  six  years 
after,  he  finds  himself  charged  with  a  treasury  warrant  for  20,000 
dollars,  bearing  date  before  that  settlement,  many  months  before  it, 
and  this  without  a  word  of  explanation.  Gentlemen,  we  resist  the 
demand.  We  say  it  is  against  the  face  of  their  own  document — it  is 
unsupported  by  a  particle  of  proof — we  know  nothing  about  the 
charge — and,  without  further  evidence,  we  refuse  to  allow  it. 

To  establish  this  mistake  we  can  only  rely  on  the  transcripts  fur¬ 
nished  by  the  United  States,  and  read  in  evidence  by  the  defend¬ 
ant,  for  all  other  testimony  has  been  excluded  ;  and  on  these  trans¬ 
cripts  only  is  your  verdict  to  be  founded. 

With  respect  to  the  fifth  item,  amounting  only  to  a  little  more 
than  three  hundred  dollars,  it  is  not  necessary  to  detain  you.  It  is 
merely  the  interest  on  a  balance  of  about  two  thousand  dollars, 
audited  in  1814,  and  not  paid  till  two  years  afterwards.  If  you 
acknowledge  the  justice  of  charging  interest  at  all,  this  item  follows 
of  course. 

But  now,  Gentlemen  of  the  Jury,  we  come,  in  order,  to  a  much 
larger  and  more  important  demand  than  any  we  have  hitherto  dis¬ 
cussed  ;  yet  a  demand  so  simple,  that  I  scarcely  know  what  to  say  on 
it,  but  merely  to  state  it.  The  moment  it  is  mentioned,  it  commends 
itself  at  once  to  your  justice  and  to  common  sense.  It  is  a  charge  of 
commission  on  the  receiving,  advancing,  and  disbursing  of  public 
moneys.  It  is  called  commission  ;  but,  more  properly  speaking,  it 
is  to  be  considered  as  an  allowance  for  work,  labour,  and  services, 
and  for  money  expended  and  disbursed.  We  have  already  adverted 
to  the  situation  of  my  client  when  the  declaration  of  war  burst  like 
a  peal  of  thunder  on  the  public  ear,  and  committed  the  nation 
to  an  arduous  military  contest,  with  almost  no  preparation  for  such 
an  event.  You  have  seen  the  state  of  public  credit  which  ere 
long  ensued.  You  have  seen  your  country,  while  covering  her 
sword  with  laurels  in  the  field  and  on  the  wave,  at  home  a  prey  to 


31 


distraction  and  distrust ;  her  coffers  empty,  her  credit  gone  ;  the  offi¬ 
cial  organ  of  the  government  declaring  in  his  place  that  its  engage¬ 
ments  could  not  be  met ;  in  a  word,  that  it  was  bankrupt.  At  that 
dark  and  trying  hour,  when  the  disaffected  eastern  states  were  com¬ 
bining  to  palsy  the  public  strength,  and  New-York,  the  first  state  in  the 
confederacy,  stood,  like  the  Jewish  Prophet,  between  the  dead  and  the 
living — in  that  hour  of  peril,  in  that  crisis  of  decision,  you  have 
seen  one  man,  by  his  efforts,  his  influence,  and  his  personal  sacri¬ 
fice,  at  the  risk  of  ruin,  and  the  hazard  of  his  all,  raise  for  her 
relief  seven  hundred  thousand  dollars  in  a  single  month.  You  have 
seen  him  create  a  patriot  army  for  the  defence  of  this  metropolis, 
and  pay  when  he  had  raised  them.  You  have  seen  him  hurrying 
through  the  storms  of  winter  from  post  to  post ;  and,  (concentrating 
in  his  own  person  the  duties  of  a  host  of  officers,)  you  have  seen 
him  involved  in  the  details,  as  well  as  in  the  larger  concerns,  of  the 
departments  both  of  war  and  of  the  treasury.  You  have  seen  him, 
under  all  this  multifarious  public  toil,  held  to  account  like  the  hum¬ 
blest  deputy  paymaster  in  his  own  employ.  Though  he  had  every 
body  to  employ,  and  every  body  to  pay,  you  have  seen  him  chained 
down  to  all  the  rigours  of  the  treasury  :  nothing  taken  for  granted; 
nothing  allowed  for  ;  nothing  short  of  the  plenitude  of  legal  proof 
admitted  to  cover  a  single  dollar’s  expenditure  ;  so  many  items,  so 
many  vouchers,  and  those  of  a  specific  kind,  or  else  a  personal  and 
irrevocable  loss  ensuing.  You  have  seen  him,  at  an  expense 
like  this,  sustaining  the  sinking  credit  and  supporting  the  tottering 
interests  of  the  general  government ;  and  you  have  heard  him,  in 
the  close,  hailed  by  that  government  as  the  saviour  of  his  country’s 
credit.  Gentlemen,  would  it  be  very  surprising  if,  under  circum¬ 
stances  like  these,  a  large  balance  had  appeared  in  his  accounts 
utterly  unexplained  ?  But  is  it  not  incredible,  is  it  not  a  miracle, 
that,  after  the  passing  through  his  hands  of  more  than  a  million  and  a 
half  of  public  moneys,  to  persons  in  places,  and  for  uses  innumera¬ 
ble,  the  utmost  that  is  pretended  to  be  brought  against  him  is  the 
paltry  sum  of  eleven  thousand  dollars  ! — and  even  this  amount 
resting,  as  the  government  confesses,  on  an  error  of  their  own  ? 
And  now,  I  ask,  is  it  much  if,  after  ruining  himself,  ahd  involving  his 


38 


relatives  by  such  a  course,  he  demands  from  his  country  the  com* 
mon  allowance  from  merchant  to  merchant,  on  a  purchase  of  goods 
or  a  negotiation  of  exchange  1  You  learn  from  the  testimony  that 
government  have  made  asimilar  allowance  tc  others.  Mr.  Dunham 
had  a  commission ;  Mr.  Romaine  had  a  discount ;  even  the  very 
banks,  who  refused  to  trust  the  government,  have,  though  indirectly, 
been  remunerated  by  the  government  business.  Why,  of  all  who 
served  the  country,  should  this  man  go  without  common  justice  ? 

I  come  now  to  the  last  item  of  our  demand.  It  rests,  in  substance, 
on  this  simple  principle — that  my  client  should  not  be  refused  as 
advantageous  a  settlement  of  his  accounts  as  was  readily  granted  to 
others,  and  those  confessedly  less  meritorious.  1  refe*- to  the  settle¬ 
ment  with  the  Corporation.  We  all  know  how  that  body  felt  and 
acted  toward  the  general  government.  You  have  had  it  in  evidence, 
that  after  solemnly  pledging  their  honour  to  the  Governor  that  if  he 
would  raise  troops  to  protect  the  city  they  would  see  them  paid, 
they  betrayed  his  confidence,  and  left  him  to  advance  a  hundred 
thousand  dollars  of  the  very  debt  they  had  solemnly  engaged  to  pay. 
Yet  with  this  body  the  government  settle  promptly,  and  most  advan¬ 
tageously.  They  obtain  stock  at  80  per  cent  ;  all  suspended  items 
are  allowed  them-,  a  second  account  is  without  difficulty  pass¬ 
ed,  and  they  come  out  of  the  transaction,  not  only  whole,  but 
actual  gainers,  to  the  amount  of  one  hundred  and  sixty  thousand 
dollars.  My  client  did  more — infinitely  more  ;  but  bow  does  he 
come  out  ?  The  Corporation  were  defending  themselves,  their 
homes,  their  children  ;  he  was  defending  the  State  at  large,  the 
cause  of  the  Union.  Yet  they  get  a  hundred  and  sixty  thousand 
dollars — while  all  his  property  passes  under  the  hammer.  Is  this 
fair  ?  is  this  righteous  ?  is  this  even-handed  justice  ?  No,  gentle¬ 
men  ;  if  any  difference  were  made,  surely  it  should  be  in  his  favour. 
That,  however,  he  does  not  ask  ;  he  demands  only  that  the  differ¬ 
ence  between  government  stock  and  current  money  should  be 
allowed  to  him,  as  it  was  enjoyed  by  others. 

[Mr.  Hoffman  then  took  up  the  exhibit,  containing  the  Defend¬ 
ant’s  whole  account,  as  it  stands  on  the  books  of  the  treasury  ;* 

*  The  summary  of  this  account  is  given  page  13  of  this  Report — its  subordinate 
details  are  too  voluminous  for  insertion. 


39 


explained  the  manner  of  keeping  the  treasury  accounts,  and 
reviewed  the  several  items  of  debit  exhibited  against  the  Defend¬ 
ant;  how  appropriations  for  one  department  of  expenditure, 
proving  too  great  for  their  original  object,  were  carried  in  part  to 
another  department,  which  had  too  little  ;  how  it  consequently 
became  necessary  to  institute  fictitious  charges,  in  order  to  balance 
these  different  accounts  ;  and,  although  this  might  be  unavoidable 
under  the  circumstances,  and  did  not  affect  the  final  settlement,  it 
presented  to  one  unapprised  of  the  mode  of  accounting,  appearances 
which  were  calculated  to  mislead  them.  (This  review  is  here 
omitted,  as  it  would  be  unintelligible  without  the  account  itself.) 

With  these  general  remarks  on  the  testimony,  I  shall  here  submit 
the  cause.  You  cannot  but  be  conscious  that  the  station  you  occu¬ 
py  is  not  only  one  of  interest,  but  full  of  the  most  solemn  responsi¬ 
bility.  T©  you  my  client  makes  his  last  resort.  After  ten 
tumultuous  years  of  solicitude  and  toil  ;  after  having  been  repulsed, 
where  he  ought  to  have  been  welcomed  ;  proclaimed  a  defaulter, 
where  he  ought  to  have  been  magnified  as  a  benefactor;  shamed 
and  sued,  where  he  ought  to  have  been  honoured  and  rewarded-— 
it  is  to  you  he  has  to  look  for  solace  and  a  shield.  You  can  both 
soothe  and  protect  him.  Your  verdict  has  the  power,  and  will  have 
the  effect,  to  convince  this  nation,  that,  so  far  from  being  a  public 
defaulter,  he  is  now,  and  has  been  from  the  beginning,  a  public 
creditor.  Nay,  more,  Gentlemen — the  voice  of  tha,t  verdict  will 
speak  at  Washington  ;  it  will  be  heard  in  the  halls  of  the  national 
legislature  ;  and  it  may  prove  the  instrument  of  obtaining,  by  a 
tardy  justice,  a  support  for  his  declining  years,  and  a  portion  for 
his  innocent  children. 


40 


MR.  EMMET’S  SPEECH. 

Thomas  Addis  Emmet,  Esq.  then  followed  on  the  same  side,  and 
spoke  in  substance  as  follows  : 

Gentlemen  of  the  Jury, 

You  will  believe  me  when  I  assure  you  that  I  have  sel¬ 
dom  in  my  lifetime  risen  under  greater  embarrassment  than  I  feel 
at  this  moment.  I  am  to  follow  the  Vice  President : — you  have 
heard  his  eloquent  opening  of  the  defence — you  have  listened  to 
its  powerful  and  pathetic  close. — I  confess  myself  unable  to  add  any 
thing  that  is  worthy  to  follow  it.  He  has  told  you  that  his  counsel 
have,  on  this  occasion,  freely  proffered  their  services.  I  could 
have  wished  he  had  kept  that  to  himself;  but  since  he  has  thought 
fit  to  disclose  it,  I  will  confess  that  I  was  actuated  in  so  doing, 
not  merely  bv  a  profound  conviction  of  the  justice  of  his  claim, 
but  also  by  a  deep  sense  of  personal  obligation.  To  the  unso¬ 
licited  kindness  of  the  defendant  in  this  cause  I  owe  the  only- 
public  appointment  1  ever  received — an  appointment  as  unexpected 
on  my  part  as  it  was  kind  and  flattering  upon  that  of  the  govern¬ 
or,  and  which  made  it  my  duty,  as  it  is  my  pleasure,  to  cherish  a 
sense  of  gratitude,  and  gladly  to  embrace  the  first  occasion  to  evince  it. 
Still,  however,  did  the  defendant  in  this  cause  appear,  to-day,  in  cir¬ 
cumstances  such  as  he  once  has  known  : — was  he  now  in  all  his  pride 
of  influence— in  the  blaze  of  fame — on  the  summit  of  power,  sought, 
caressed,  flattered,  feared  ; — having  Dot  only  all  things  for  himself, 
but  dignities  and  emoluments  to  confer  upon  others,  1  should  have 
hesitated  in  offering  him  my  humble  services  :  1  might  then  have 
been  suspected  of  interested  motives.  But  it  is  far  otherwise.  He 
presents,  before  us  all,  an  affecting  instance  of  the  transitory  na¬ 
ture  of  human  things,  and  of  those  sudden  and  striking  vicissitudes 
which  so  often  characterise  our  present  state  of  existence.  The 
services  he  rendered  to  his  country  and  to  its  government  during 
the  momentous  period  of  the  late  war,  can  never  be  forgotten  ; 
and  are  such  as  no  other  man  (with  the  exception  only  of  the  great 
naval  and  military  commanders.)  ever  did  or  ever  could  perform  ; 
yes,  gentlemen,  I  repeat  it,  with  the  exception  only  of  those  he- 


roic  men,  Daniel  D.  Tompkins  did  more  for  this  land,  during  the 
late  war,  than  any  other  man  in  it.  He  obtained  large  resources 
for  the  government,  when  resources  had  become  indispensable — 
when  its  credit  was  at  the  last  and  lowest  point  of  depression,  and 
when  the  first  officer  of  the  Treasury  had  used  his  utmost  efforts, 
and  used  them  in  vain. — He  supported  the  troops  that  fought  upon 
the  frontier  : — -He  surrounded  this  city  with  an  army  when  the  go¬ 
vernment  confessed  themselves  inadequate  to  its  protection — he 
paid  that  army  when  the  government  had  not  a  dollar  in  its  Trea¬ 
sury.  Gentlemen,  had  services  like  these  been  rendered  to  the  go¬ 
vernment  of  any  other  country,  what  rewards,  think  you,  would 
have  been  deemed  a  sufficient  remuneration  ?  Had  they  been 
done  for  England,  a  princely  estate — the  proclamation  of  his  acts, 
wherever  history  could  tell  them — nobility  for  himself,  and  the 
descent  of  that  nobility  to  his  children  and  his  kin  to  their  latest 
generation,  would  have  been  considered  an  inadequate  expression  of 
the  national  gratitude.  But,  instead  of  this,  my  client  appears  be¬ 
fore  you  here,  not  only  utterly  ruined  in  his  property,  but  proclaim¬ 
ed  a  public  defaulter,  and  prosecuted  by  his  government  for  the 
pitiful  sum  of  eleven  thousand  dollars  !* 

Mr.  Emmet  then  took  a  similar  course  to  his  associate  counsel, 
in  commenting  successively  upon  the  several  items  of  set-off. 

He  dwelt,  with  some  minuteness,  on  the  matters  of  account — con¬ 
trasted  the  simplicity  of  the  account  of  the  defendant,  as  presented 
by  himself,  with  the  complexity  of  those  rendered  by  the  Treasury- 
insisted  on  his  having  been  largely  and  constantly  a  creditor  to  Go¬ 
vernment,  and  his  consequent  right  to  charge  interest.  He  inveighed 
with  warmth  against  the  narrow  spirit  in  which  he  had  been  settled 
with — on  the  rigid  manner  in  which  he  had  been  held  to  vouchers  of  a 
particular  description,  while  able  to  produce  other  and  sufficient  proof 
of  payment — on  the  delay  thus  produced,  even  where  direct  injury 
was  not  inflicted — on  the  equity  not  merely,  but  the  legality  of  the  claim 
for  commission  ;  it  being  a  simple  demand  of  remuneration  for  work 
and  labour  done  and  performed  on  behalf  of  another — on  the  repeated 


*  The  Reporter  regrets  extremely,  that  he  has  been  able  to  preserve  only  the 
opening  of  this  very  eloquent  speech.  Its  most  material  points,  however,  had 


been  necessarily  anticipated  by  his  associate  counsel. 

6 


42 


acknowledgments  by  Government  of  the  distinguished  services  of 
the  defendant,  and  his  cold  reward  ;  and  finally,  on  the  contrast 
between  the  treatment  of  him  and  of  others.  In  the  conclusion 
he  pressed  upon  the  jury  the  equity  of  giving  to  his  client  a  pub¬ 
lic  certificate  of  whatever  amount  they  should,  on  the  whole  case, 
conscientiously  believe  to  be  his  just  due. 

MR.  TILLOTSON’S  SPEECH. 

The  District  Attorney ,  Mr.  Tillotson,  then  summed  up  the  cause, 
on  behalf  of  the  United  States,  in  nearly  the  following  manner  : 
Gentlemen, 

When  1  yesterday  asked  the  indulgence  of  the  court  for  an  adjourn¬ 
ment,  at  a  late  hour,  it  was  not  under  the  expectation  that  I  should  be 
more  fully  prepared  now  to  discuss  the  merits  of  the  controversy  in 
question,  than  I  was  then :  but  that  myself,  as  well  as  those  whom  I 
now  address,  might  recover  from  that  state  of  extraordinary  popular 
excitement  which  the  events  connected  with  this  investigation  are 
calculated  to  produce  ;  that  the  jury,  in  the  tranquil  moment  of  re¬ 
flection,  might  discriminate  between  the  influence  which  facts  ought 
to  produce  on  the  mind,  and  the  lodgment  that  sensibility  had  made 
in  favour  of  the  alleged  public  services  of  the  defendant.  Gentle¬ 
men,  I  am  no  stranger  to  that  excitement.  There  are  events  in  my 
life  that  have  led  me  personally  to  feel  its  influence,  perhaps  more 
than  1  should  be  warranted  at  this  time  in  explaining.  I  have,  during 
the  period  of  those  very  public  services  referred  to,  been,  perhaps, 
among  the  most  confidential  friends  of  the  Vice  President ;  I  have 
personally  witnessed  his  exertions,  and  have  been  even  called  upon 
as  a  witness,  in  the  present  trial,  to  declare  their  extent  and  charac¬ 
ter  ;  and  I  therefore  particularly  feel  the  powerful  acknowledgment 
made  by  the  learned  counsel  who  last  addressed  you,  when,  in  the 
pride  and  altitude  of  his  fame,  he  declared  to  this  court  and  jury, 
the  distinguished  marks  of  respect  he  had  received  from  the  hands 
of  his  client;  1,  also,  (said  Mr.  T.)  feel  and  acknowledge  obliga¬ 
tions  of  the  highest  character,  to  the  Vice  President,  and  now 
allude  to  them  only  as  marking  the  peculiar  situation  in  which 
I  stand  on  this  trial  ;  for  if  I  am  compelled,  by  the  discharge  of  a 
public  and  official  duty,  to  exclude  the  claims  which,  in  any  other 


43 


place  than  within  these  walls,  I  should  be  proud  to  gratify,  the 
obligation  is  equally  strong  with  many  of  you,  whom  I  know  to  be 
also  his  personal  and  political  friends. 

Mr.  Tillotson  then  adverted  to  the  items  of  the  bill  of  particu¬ 
lars,  containing  the  claims  of  the  Vice  President,  which  he  stated 
he  should  endeavour  to  show  were  totally  unsupported.  The  first 
item  that  presents  itself,  is  a  credit  claimed  for  interest  due  on  a 
balance  of  $38,000,  declared  by  the  accountant,  Colonel  Lear,  on 
the  14th  December,  1814: — That  it  evidently  appeared,  from  the 
transcripts,  then  in  evidence,  that  no  final  settlement  took  place  at 
that  period,  but  that  the  balance  was  credited  on  the  vouchers  then 
exhibited,  and  transferred  to  the  new  account  that  was  settled  on  the 
5th  November,  1816;  for  had  this  been  a  final  settlement,  why  did 
not  the  Vice  President  receive  the  $38,000  ;  why  was  it  permitted 
to  linger  on  the  books  of  the  accountant  until  the  subsequent  settle¬ 
ment,  on  the  5th  of  November,  1816,  when  it  was  finally  disposed 
of  in  that  account,  and  the  then  reported  balance  of  $2,192,  paid 
over  to  the  Vice  President :  but  that  no  final  settlement  could  take 
place  at  that  time,  is  a  necessary  inference  from  the  fact,  that  at  the 
very  time  when  this  final  settlement  is  said  to  have  taken  place,  the 
Vice  President  was  in  possession  of  the  funds  of  the  Government,  to 
the  amount  of  $700,000,  as  appears  from  the  dates  of  the  warrants 
of  the  24th  November,  and  the  22d  of  December,  1814,  both  ante¬ 
rior  to  the  settlement.  Now,  (said  Mr.  T.)  we  have  seen  that  in 
the  settlement  of  1816,  the  Vice  President  immediately  received 
the  balance  declared  to  be  due  him,  of  $2,192,  and  yet,  when  the 
balance  of  $38,000  was  declared,  in  December,  1814,  neither  the 
Government  tendered,  or  the  Vice  President  applied  for  its  payment, 
until  it  was  finally  merged  in  the  advances  that  took  place,  between 
the  24th  November,  1814,  and  the  3d  of  February,  1816.  It  is  sus¬ 
ceptible  of  but  one  inference,  that  it  was  embraced  within  the  rule 
that  governs  all  the  mutual  dealings  between  parties,  that,  in  the 
alternate  debit  and  credit  of  a  running  account  interest  has  neither 
a  legal  or  equitable  claim  : — but  admitting  that  the  Vice  President 
is  entitled  to  interest  on  the  balance  due  him  on  the  14th  December, 
still  it  must  be  subject  to  the  deduction  of  interest  on  the  $14,000 
admitted  to  have  been  erroneously  credited  to  him  in  that  account, 
and  since  transferred  to  the  credit  of  Mr.  Yelverton, 


44t 


He  would  then  advert,  he  said,  to  a  claim  not  contained  in  the  biif 
of  particulars  of  the  Vice  President,  and  therefore  not  susceptible  of 
proof  on  the  trial,  but  urged  by  his  counsel  with  great  force  and  con¬ 
fidence,  as  having  a  bearing  on  the  claim  for  interest,  viz.  that  from  the 
settlement  in  December,  1814,  until  that  of  the  5th  Nov.  1816,  he 
was  in  advance  for  the  government,  $220, 000.  As  the  claim  is  for 
interest,  and  as  such  is  susceptible  of  three  objections  :  1st.  It  was 
never  presented  to  the  accounting  officers,  and  therefore  not  evi¬ 
dence.  2d.  It  is  not  contained  in  the  bill  of  particulars,  and  3d.  It  is 
totally  unsupported  in  point  of  fact.  Now,  gentlemen,  (said  Mr.  T.) 

I  do  not  pretend  to  any  accuracy  in  the  result  I  present  :  it  is  suf¬ 
ficient  for  me  to  point  out  the  mode  in  which  1  have  arrived  at  it. 
On  examining  the  abstracts,  you  will  find,  that  allowing  to  the  Vice 
President  the  whole  amount  he  advanced  from  the  14th  Dec.  1814, 
until  the  3d.  Feb.  1816,  with  6  percent,  interest,  and  calculating  the 
amount  advanced  to  him  in  Treasury  notes,  at  5f  percent  interest, 
it  will  leave  a  small  balance  against  him.  It  is  not  pretended  that 
payments  were  made  by  the  Vice  President,  other  than  those  credited 
to  him,  in  the  settlement  of  1816,  and  by  examining  the  abstracts, 
it  will  be  seen  that  every  warrant  extinguished  an  equal  propor¬ 
tion  of  the  debt  due  to  the  Vice  President,  so  that  the  last  warrant 
of  $400,000,  that  issued  on  the  3d.  of  Feb  .  1816,  not  only  reimbur¬ 
sed  him  his  advances  with  interest  at  6  per  cent,  but  left  him  a  debtor 
to  the  government.  And  here,  (said  Mr.  T.)  I  admit  that  it  would  be 
a  necessary  inference  that  from  the  24th  Dec.  1814,  until  the  3d 
of  Feb.  1816,  the  Vice  President  was  a  creditor  of  the  government, 
but  on  that  day  the  warrant  of  $400,000  made  him  a  debtor,  after 
reimbursing  him  his  principal  and  interest.  What  inference  but 
this,  (said  Mr.  T.)  can  be  made  from  the  silence  of  the  Vice  President 
on  this  subject  ?  Even  here,  where  “  the  whole  force  and  arrear” 
of  collected  injury  and  complaint  has  been  concentrated  for  the 
purposes  of  this  defence,  not  an  intimation  has  been  made  of  this  claim, 
until  it  became  necessary  to  distract  the  painful  attention  which  for 
four  whole  days  has  been  rivetted  in  this  cause,  by  an  almost  ex¬ 
hausted  Jury. 


45 


He  then  proceeded  to  notice  the  second  item  of  the  Vice  Presi¬ 
dent’s  account.  “  To  amount  of  interest  due  from  1814  to  May,  1820, 
on  $4,411  ;  loss  sustained  on  the  sale  of  treasury  notes  hypothe¬ 
cated  to  the  Bank  of  America.”  Among  all  the  causes  of  complaint, 

- 

this  has  been  presented,  as  an  act  of  the  most  cruel  injustice,  on  the 
part  of  the  Government :  that  years  should  be  permitted  to  elapse, 
before  the  Vice  President  was  credited  with  a  loss  which  he  him¬ 
self  had  personally  sustained  ;  and  that  when  at  last  credited,  it 
should  be  unaccompanied  with  the  interest  due  on  the  same  up  to 
1820.  It  appears  in  evidence,  that  a  deposit  of  $165,000  on  trea¬ 
sury  notes,  was  made  with  the  Bank  of  America,  as  a  collateral  se¬ 
curity,  for  a  loan  of  $150,000,  with  the  privilege  of  selling  them  at 
the  market  price,  if  not  redeemed  within  four  months  :  at  the  expi¬ 
ration  of  the  time  limited,  they  were  sold,  and  the  debt  of  the  bank 
paid,  and  the  surplus  returned  to  the  Vice  President ;  who,  pre¬ 
suming  that  he  would  be  charged  with  them  at  par,  requested  from, 
the  bank  the  discount  of  an  accommodation  note  equal  to  the  loss, 
which  note  was  not  paid  until  May,  1820:  but  it  also  appears  in 
evidence,  that,  though  the  Vice  President  was  charged  with  the  loss 
in  the  final  settlement  that  took  place  in  1816,  he  was  also  credited 
with  the  same  amount  and  interest  up  to  the  5th  November,  1816. 
In  this  state  of  the  account,  it  is  difficult  to  reconcile  the  strange 
and  remarkable  fact,  of  the  principal  sum,  with  interest,  being  paid 
in  1816,  with  the  claim  for  interest  subsequent  to  its  payment.  But 
it  is  said  to  be  a  double  charge  :  first,  in  the  form  of  a  warrant,  and 
second,  as  a  debit  by  itself.  There  is  but  one  difficulty  (said  Mr.  T.) 
in  yielding  to  this  explanation,  which  is,  that  if  the  sum  of  $4,411 
has  been  doubly  charged,  to  balance  the  account,  it  must  be  doubly 
credited.  Now,  as  it  is  credited  but  once,  and  admitted  in  the  bill 
af  particulars,  on  the  trial,  and  in  the  agreement,  to  have  been 
reimbursed,  it  is  an  admission  totally  irreconcilable  with  the  argu¬ 
ment  of  its  being  a  double  charge,  and  yet  it  is  equally  difficult  to 
conceive,  that  if  paid,  as  it  appears  from  the  abstract  in  1816,  it 
should  be  chargeable  with  interest  as  against  the  Government,  for 
four  years  subsequent  to  its  payment. 


He  then  adverted  to  the  third  item  of  $  1 4,527  64  being  the  amount 
of  certain  advances  to  the  militia  and  volunteers,  certified  by  N. 
Allen,  and  contained  in  a  letter  of  R.  Brent  to  the  Vice  President, 
and  which,  it  is  alleged,  were  never  included  in  any  settlement 
made  between  the  government  and  him.  As  this  claim,  since  its  re¬ 
jection  by  the  court,  has  been  made  the  subject  of  remark,  both  by 
the  Vice  President  and  his  counsel,  1  cannot  consent  to  waive  my 
right  of  reply. 

It  will  be  recollected,  on  reference  to  the  date  of  the  letter  and 
certificate,  that  this  transaction  took  place  in  July,  1813,  in  the  city 
of  Washington";  from  which  place  Mr  Brent  states  that  the  amount 
shall  be  credited  to  the  Vice  President.  To  justify  its  present¬ 
ment  on  this  trial,  it  is  argued  that  Mr.  Brent  was  an  accounting 
officer  within  the  meaning  of  the  act,  quoad  all  agents  connect¬ 
ed  with  the  pay  department :  but  on  reference  to  the  act  of  con¬ 
gress  organizing  the  War  Department,  it  will  be  found  to  be  sus¬ 
ceptible  of  no  other  conclusion,  than  that  the  only  accounting  offi¬ 
cer  at  the  time  known  to  the  department  was  the  accountant.  But 
of  what  avail  would  be  the  admission,  that  Mr.  B.  was  an  accounting 
officer,  as  every  presumption  arising  from  its  date,  being  in  July, 

1813,  would  admit  of  little  doubt,  but  that  it  was  included  in  the 
settlement  that  subsequently  took  place  on  the  14th  of  December, 

1814,  and  then  credited  to  the  Vice  President,  particularly  in  the 
absence  of  the  necessary  proof,  which,  as  preliminary  to  its  intro¬ 
duction,  the  Vice  President  could  and  ought  to  have  presented. 
But  in  what  form  does  it  appear  in  this  court  ?  As  the  certificate  of 
N.  Allen,  referring  to  vouchers  not  produced,  and  consequently  de¬ 
riving  no  authenticity  from  any  admission  contained  in  the  letter  of 
Mr.  Brent.  But  it  presents.a  remarkable  coincidence,  which,  unex¬ 
plained  would  lead  to  a  belief  that  it  is  the  identical  sum  credited  to 
the  Vice  President  in  1814,  since  transferred  to  the  credit  of  Mr. 
Yelverton,  and  now  the  subject  of  the  present  controversy.  A 
due  regard,  however,  to  the  Vice  President,  compels  me  to  sus¬ 
pend  any  comment  that  this  strange  coincidence  is  calculated  to  ex¬ 
cite  ;  for  I  freely  admit  that  it  is  totallyjinconsistent  with  the  respect 
I  owe  him  to  indulge  the  supposition. 


47 


He  then  examined  the  item  of  $20,000  contained  in  the  bill  of 
particulars,  which  he  stated  was  so  totally  destitute  of  all  claim  to  con¬ 
sideration,  that  he  felt  some  little  embarrassment  in  making  it  the  sub¬ 
ject  of  comment  to  the  jury.  It  is  in  proof  that  it  has  already  been 
submitted  to  the  accounting  officers  of  the  Treasury,  and  carried  to 
the  debit  of  the  Vice  President  in  the  final  settlement  of  the  5th  of 
November,  1816,  which  settlement  the  Vice  President  has  himself 
recognised  and  acknowledged,  by  receiving  the  balance  of  $2,192 
paid  to  him  on  that  occasion,  and  which  settlement  closed  all  the 
various  monied  transactions  between  him  and  the  United  States. 

The  mere  allegation,  therefore,  that  it  had  been  previously 
charged  in  the  settlement  with  Mr.  Lear,  in  December,  1814,  was 
insufficient,  in  itself,  to  resist  the  operation  of  the  Act  of  Congress, 
which  declares  “  the  transcript  of  the  auditor  to  be  prima  facie  evi¬ 
dence  of  indebtedness and  in  the  absence  of  other  proof  to  be  con¬ 
clusive  on  the  court  and  the  jury.  I  am  ready  to  admit  (said  Mr. 
T.)  that  under  our  rules  of  evidence  it  was  in  the  power  of  the 
Vice  President,  by  resorting  to  the  terms  of  the  settlement  in  1814, 
to  have  shown  the  mistake  of  the  auditor,  and  to  have  enabled  the 
jury,  in  the  exercise  of  their  appellate  power,  to  have  credited  him 
on  the  amount.  But  as  it  is  presented  to  you  in  the  transcript,  it  is 
a  debit,  and  is  there  a  particle  of  evidence  on  the  cause  to  impeach 
its  verity  or  validity^?  The  Vice  President  had  the  legal  right  of 
demanding  from  the  Treasury  an  authenticated  copy  of  the  settle¬ 
ment  in  1814,  and  all  that  can  be  asked  is,  that  in  the  absence  of 
the  necessary  proof  on  his  part  to  establish  its  inaccuracy,  that  a 
solemn  act  of  Congress,  which  makes  the  transcript  evidence,  shall 
not  be  invalidated  by  presumptions,  or  by  the  weight,  which,  per¬ 
haps,  in  any  other  place  than  in  a  court  of  justice,  might  be  at¬ 
tached  to  the  declaration  of  the  second  officer  of  Government.  But 
there  is  another  consideration,  that  in  questions  of  account  is  not 
without  its  weight.  The  mistake  alleged,  took  place  on  the  5th 
of  November,  1816,  and  yet,  to  our  knowledge,  it  has  never  been 
the  subject  of  complaint  until  the  present  moment;  and  yet  it  is 
scarcely  to  be  credited,  that  when  the  Vice  President  received  the 
balance  of  $2,192,  declared  on  that  settlement,  he  should  have 


48 


been  unconscious  that  the  government  was  indebted  to  him  in  the 
enormous  sum  of  $22,192,  making  a  difference  of  $20,000  on  the 
final  settlement  of  his  account,  as  it  was  only  necessary  to  advert 
to  the  items  of  the  previous  settlement  in  December,  1814,  to  have 
established  the  fact  of  the  unwarrantable  re-appearance  of  this 
item  of  $20,000  in  the  subsequent  account,  in  relation  to  this 
item,  whatever  indulgence  may  be  due  to  the  intimation  so  fre¬ 
quently  made  by  the  counsel  of  the  Vice  President,  that  his  higher 
and  more  important  duties  during  the  war,  rendered  accuracy  im¬ 
possible  ;  it  will  be  recollected  that  it  occurred  long  since  those 
duties  ceased,  and  to  which,  in  the  tranquil  moment  of  1816,  the 
mind  of  the  Vice  President  must  have  been  directed. 

I  shall  now  (said  Mr.  T.)  direct  your  attention  to  what  may  be 
considered  the  equitable  claims  of  the  \  ice  President,  as  commission 
®n  money's  advanced,  received,  and  expended  ;  and  here  I  must  re¬ 
mark  that  was  this  a  question  in  which  twelve  men  individually  were 
called  upon  to  pronounce  upon  an  adequate  remuneration  for  the  pub¬ 
lic  services  of  the  Vice  President  ;  was  it  a  question  in  which,  as  citi¬ 
zens,  a  Jury  deemed  it  their  duty  to  instruct  the  members  of  the 
national  legislature,  in  the  extent  of  the  provision  that  was  due  to 
the  distinguished  individual  in  question,  or  as  one  of  the  learned 
counsel  has  said,  no  longer  to  suffer  the  imputation  of  presenting  to 
the  nation,  in  the  person  of  its  second  officer,  a  national  monument  of 
its  injustice  and  ingratitude,  perhaps  there  are  few  who  would  hesi¬ 
tate  ;  for  one,  I  would  cheerfully  contribute  to  stimulate  the  lingering 
relief  his  public  services  have  unquestionably  earned,  and  which 
now,  perhaps,  his  private  fortune  may  require  ;  but  which,  by  the 
laws  of  the  country,  must  rest  on  the  munificence  of  those  to  whom 
the  nation  has  exclusively  commuted  the  priviledge  of  guarding  its 
treasure,  and  the  power  of  extending  its  rewards.  But  was  it  not 
to  have  been  expected,  that  in  a  claim  of  such  magnitude  as  5  per 
cent,  commission  on  $1,900,000,  some  evidence  would  have  been 
presented,  either  of  its  adoption  by  the  known  law  of  the  land,  or 
of  its  toleration  by  the  usages  of  the  country.  Was  it  to  be  ex¬ 
pected,  that  within  the  walls  of  a  court  of  justice,  a  jury  should  have 
been  left  drifting  between  a  wish  excited  by  sympathy,  and  an  obli- 


49 


gation  imposed  by  an  oatb,  because  every  witness  who  was  asked 
the  question,  whether  any  of  the  public  agents  was  ever  remunerated, 
has  answered  in  the  negative.  Was  it  not  to  have  been  expected, 
that  witnesses  would  have  been  sworn  to  testify  to  some  rate  of  com¬ 
mission  ?  or  did  the  Vice  President  believe  that  he  had  little  to  add  to 
a  sympathy  already  excited  ?  Or  was  it  not  to  be  expected  that,  in 
founding  a  claim  on  a  personal  responsibility  in  the  negociation  of 
Treasury  notes,  some  more  signal  evidence  of  responsibility 
would  have  been  presented  than  the  solitary  case  of  the  Bank  of  Ame¬ 
rica  ?  for  it  stands  upon  this  trial  as  the  only  insulated  instance  in  which 
a  guarantee  has  been  either  required  or  given  in  pledge  for  the 
government  credit.  If  the  Vice  President  merely  received,  and 
disbursed,  without  adding  to  it  either  the  responsibility  or  incon¬ 
venience  of  personal  credit,  there  was  a  remuneration  susceptible 
of  proof,  which  it  was  his  duty  to  submit  on  this  trial  ;  and  in  the 
absence  of  which,  an  allowance  by  the  jury  would  be  both  unau¬ 
thorized  and  unprecedented.  What  the  law  authorized,  the  govern¬ 
ment  has  promply  extended  to  him  ;  and  however  much  we  may 
regret  that  it  was  confined  to  the  quarter  of  one  per  cent,  allowed 
for  disposing  of  Treasury  notes,  and  which  is  credited  to  the  Vice 
President  in  the  abstracts,  still  it  forms  a  conclusive  answer  to  the 
imputation,  that  the  prostration  of  his  fortune  and  character  was 
either  the  wish  or  object  of  the  administration. 

But,  say  the  learned  counsel,  it  is  a  common  law  right.  However 
admissible  this  doctrine  may  be,  (said  Mr.  T.)  in  regulating  the  inter¬ 
course  between  man  and  man,  it  has  no  application  to  a  supreme 
power  ;  which,  in  governments  the  most  free,  has  ever  reserved  to 
itself  the  right  of  regulating,  by  its  enactments,  the  obligations  to 
which  it  feels  itself  compelled  to  submit.  And  why  ?  because  it 
can  only  enforce  its  righ'S  under  the  authority  of  its  statutes,  and 
should  therefore  be  protected  from  any  arbitrary  rule  of  decision, 
which  the  feelings  of  a  jury  might  seek  to  impose.  Had  the  Vice 
President  intended  to  have  availed  himself  of  the  right  of  setting  off 
these  commissions,  why  has  he  not  called  uponthe  numerous  moneyed 
agents  of  this  city  ?  They,  at  least,  could  have  established  the  usa  ;e; 
but  not  one  individual  has  been  brought  to  testify,  with  the  exception 

7 


50 


of  Mr.  Dunham,  who,  under  a  specified  agreement  with  the  commis¬ 
sary  general,  became  the  purchaser  of  blankets  for  the  army.  But 
without  intending  to  lessen  the  merits  of  the  V;ce  President,  l  would 
ask,  whether,  under  his  general  oath  of  office  as  governor,  he  was 
not  bound  to  protect  the  territory  of  which  he  was  the  chief  magis¬ 
trate  ?  and  whether  all  the  expenditures  were  not  exclusively  direct¬ 
ed  to  the  defence  of  this  state  ?  and  whether  the  same  principle 
which  is  now  sought  to  be  established  in  this  case,  must  not,  of  right, 
be  extended  to  the  "overnor  of  every  State,  who  has  borne  any 
part  in  the  expenditure  of  public  money  during  the  late  war  ? 

But,  (said  Mr.  T.)  it  is  worthy  of  remark,  that  at  the  very  time 
when  the  right  to  commission  accrued  during  the  fall  of  1814,  the 
Vice  President  was  receiving,  as  it  appears  from  the  transcript  in 
my  hand,  the  pay  and  emoluments  of  a  Major  General  in  the  United 
States  Army,  the  highest  compensation  conferred  upon  the  highest 
rank  in  the  service.  This  fact  I  shall  submit  without  farther  re¬ 
mark,  for  whether  this  compensation  was  received  as  the  military 
commander  of  this  district,  or  as  the  financial  agent  of  the  govern¬ 
ment,  it  conclusively  does  show  that  no  expedients  were  left  unem¬ 
ployed  to  concentrate,  in  the  person  of  the  then  governor,  all  that 
could  be  due  to  his  patriotism  and  services. 

I  have  now,  (said  Mr.  T.)  examined  with  some  degree  of  preci¬ 
sion,  and  I  trust  with  candour,  all  the  claims  on  the  part  of  the 
Vice  President  ;  and  hope  I  have  not  so  far  mistaken  the  effect  of 
the  remarks  1  have  submitted,  as  to  leave  any  doubt  on  the  mind, 
but  that  the  United  States  are  entitled  to  claim  from  your  hands  the 
amount  reported  by  the  auditors.  As  the  subject  of  commissions 
was  one,  in  which  the  department  of  the  Treasury  could  make  no 
allowance,  I  am  satisfied  in  having  vindicated  the  character  of  the 
accounting  officers  from  the  charge  of  either  accidental  mistake,  or 
intentional  wrong — or,  what  is  worse,  from  making  the  defendant 
the  victim  of  marked  and  unauthorized  oppression.  I  am  free  to  ad¬ 
mit,  that  neither  in  his  person,  or  in  that  of  any  of  the  distinguished 
men  who  have  served  their  country,  has  the  nation  been  either  ge¬ 
nerous  or  just  ;  but  it  is  not  in  a  court  of  justice  that  public  service 
can  receive  its  reward,  or  public  sacrifices  their  indemnity.  Tu- 


51 


tored  as  we  are  by  form  and  regulation,  it  is  worse  than  assump¬ 
tion  to  yield  to  a  sympathy  unknown  to  the  law,  and  foreign  to  the 
merits  of  the  cause  in  which  we  are  engaged.  With  you,  rank  can 
have  no  claim  that  you  are  not  prepared  to  concede  to  the  meanest 
suitor  in  this  court — distinction  no  verdict,  that  is  not  equally  the 
right  of  all,  and  I  am  not  yet  prepared  to  believe,  that  you  are  now 
ready  to  declare,  that  as  Jurors  you  have  the  power  of  establishing 
a  claim  which  can  only  look  for  its  recognition  to  the  Congress  of 
the  United  States.  What  the  Government  under  existing  laws  could 
do,  they  have  done  ;  and  what  they  refused  to  General  Swartwout, 
they  have  conceded  to  the  Vice  President ;  a  distinction  which  at 
least  is  indicative  that  oppression  is  not  among  the  causes  that  have 
led  to  the  necessity  of  this  controversy. 

The  Defendant  here  asked  leave  of  the  Court  to  add  a  feW 
words,  by  way  of  explanation,  provided  the  District  Attorney  should 
he  allowed  the  liberty  of  reply. 

He  said  that  he  could  not,  in  general,  complain  of  the  conduct  of 
that  gentleman,  in  conducting  the  present  suit ;  he  was  fully  sensi¬ 
ble  of  the  obligation  which  compelled  him  to  perform  a  public  duty 
at  some  expense  of  private  feeling  :  but  that  he  really  had  not  been 
prepared  to  hear  from  him  an  insinuation,  that  a  few  months’ 
military  pay,  (an  allowance  intended  merely  to  cover  his  travelling 
expenses,  and  the  transportation  of  baggage,)  was  to  be  taken  in  lieu 
of  all  claims  upon  his  country.  “  This,”  said  Mr.  Tompkins,  “wasthe 
unkindest  cut  of  all — and  the  remarks  upon  the  subject  have  added 
insult  to  injury.  With  respect  to  the  credit  allowed  in  the  govern¬ 
ment’s  account  against  me,  for  a  balance  almost  the  same  in  amount 
with  that  I  claim  under  the  letter  of  Col.  Brent,  one  word  of  explana¬ 
tion  will  suffice.  The  troops  were  paid  quarterly  ;  the  gross  amount  of 
different  quarter’s  pay  would  come  naturally  to  about  the  same  sum. 
I  paid  those  troops  at  two  different  times  ;  for  one  of  those  pay¬ 
ments  I  got  Allen’s  receipt,  for  the  other  I  did  not.  The  credit  in 
the  account  is  for  the  sum  receipted  ;  what  I  claim  is  for  the  other 
payment ;  and  on  comparing  the  date  of  the  credit  with  the  date  of 
the  payment  claimed,  they  will  be  perceived  to  be  quite  different. 


The  Defendant's  counsel,  in  explanation  of  the  charge  on  inte¬ 
rest,  stated  that  it  would  be  unfair  to  set  the  interest  on  the  several 
warrants  issued  in  favour  of  the  Defendant  against  his  claim  for 
interest  on  liquidated  balances  ;  because,  while  he  had  been  charged 
interest  by  government  on  the  treasury  notes,  he  at  the  same  time 
had  been  charged  interest  by  the  banks  on  loans  he  had  made. 
Nor  was  the  item  of  $20,000,  as  asserted  by  the  District  Attorney, 
without  evidence.  The  transcript  in  which  the  same  was  charged 
was  itself  evidence  against  the  charge.  That  transcript  proved  the 
whole  ground  on  which  the  charge  was  resisted.  Nor  was  it 
necessary,  under  the  act  of  1797,  that  this  item  should  have  beeD 
presented  at  the  treasury,  and  disallowed.  That  act  referred  to 
credits  claimed  ;  this  was  not  a  credit  claimed,  but  a  debit  resisted. 

rI  he  District  Attorney  complained  that  the  gentlemen  had  extend¬ 
ed  explanation  into  argument,  and  urged  in  reply  the  same  conside¬ 
rations  on  which  he  had  dwelt  in  summing  up. 

Before  the  Judge  rose  to  charge  the  jury,  the  District  Attorney 
Submitted  to  him  the  following  points,  upon  which  he  prayed  the 
court  to  instruct  the  jury. 

1st.  To  charge  the  jury  that  the  item  of  20,000  dollars  must 
be  presumed  to  be  correctly  stated  in  the  transcripts,  and  that  ne 
legal  evidence  does  appear  to  show  that  it  was  so  charged  incor¬ 
rectly,  and  must  therefore  be  credited  to  the  plaintiffs. 

2.  That  the  five  per  cent,  commission  is  not,  by  the  known  law  of 
this  land,  a  legal  charge  or  set-off  against  the  plaintiffs  in  this  cause, 
and  must  therefore  be  discarded  by  the  jury  as  a  set-off  in  the  pre¬ 
sent  action. 

3.  That  interest  is  not  chargeable  on  a  running  account,  and  that 
if  they  believed  there  was  a  settlement  the  26th  of  December, 
1814,  still,  as  the  defendant  was,  as  it  appears  from  the  testimony, 
in  possession  of  advances  from  the  government,  no  interest  can  by 
law  be  allowed. 


53 


JUDGE’S  CHARGE. 

The  judge,  after  remarking  for  some  time  on  the  importance  of 
the  controversy,  not  only  as  related  to  its  peculiar  nature,  but  also 
as  to  the  amount  actually  in  dispute  between  the  parties ;  oh  the 
liberality  with  which  it  had  been  conducted  on  the  part  of  the  go¬ 
vernment,  and  on  the  rank,  character,  and  services  of  the  defend¬ 
ant,  charged  the  jury  on  the  above  points  to  the  following  effect : 

1st.  That  the  transcripts  from  the  Treasury  Department,  pro¬ 
duced  by  the  attorney  of  the  district,  must  be  presumed  to  be  cor¬ 
rect,  as  to  the  matters  of  account  therein  stated  ;  and  that  the  item  of 
twenty-thousand  dollars,  claimed  as  a  credit  by  the  defendant,  could 
not  be  allowed,  because  it  had  not  been  presented  to  the  account¬ 
ing  officers  of  the  Treasury,  and  by  them  disallowed,  as  the  statute 
directs,  unless  it  clearly  appeared  from  the  transcripts  of  the  ac¬ 
counts  themselves,  so  read  in  evidence,  that  the  item  of  twenty  thou¬ 
sand  dollars,  had,  by  mistake  or  inadvertence,  been  twice  charged  to 
the  defendant ;  and  that  in  such  case  it  was  competent  for  the  jury  to 
correct  an  error  clearly  appearing  upon  the  face  of  said  transcript. 

2d.  That  the  charge  of  five  per  cent,  commission  is  not  allowed 
by  any  law  or  statute  of  the  United  States,  and  could  not  be  set  off 
as  a  liquidated  demand  ;  but  evidence  having  gone  to  the  jury,  that 
a  claim  for  this  item  had  been  made  at  the  proper  accounting  offices 
of  the  treasury,  (and  which  fact  was  not  controverted  on  the  part  of 
the  United  States,)  and  it  having  been  urged  by  the  counsel  of  the 
defendant  that  he  was  entitled  to  claim  such  reasonable  amount  of 
the  sum  charged  for  commission,  as  a  compensation  for  services  and 
work  and  labour  rendered,  and  for  disbursements  and  expenditures 
of  money  on  behalf  of  the  United  States,  as  the  jury  might  think  fit 
to  allow  ;  the  Court  charged  the  jury,  if  they  should  be  of  opinion 
that  the  defendant  had  rendered  services,  work,  and  labour  for  the 
United  States,  and  disbursed  and  expended  money  in  their  behalf, 
and  for  this  had  received  no  compensation,  and  the  evidence  of 
such  service,  work,  and  labour,  disbursements,  and  expenditures, 
having  gone  to  the  jury  without  objection,  in  such  case  it  was  com¬ 
petent  to  allow  to  him  a  reasonable  compensation  for  such  services, 
work,  and  labour,  disbursements,  and  expenditures  :  and  on  this  prin¬ 
ciple  alone  could  any  allowance  in  this  respect  be  made  of  any  part 
of  the  sum  charged  as  commission. 


54 

3d.  That  it  was  a  general  rule  that  interest  is  not  chargeable  on  a 
running  account,  and  can  only  accrue  on  a  liquidated  balance. 
That  if  the  jury  found  there  was  a  settlement  on  the  26th  of  De¬ 
cember,  1814,  and  a  balance  was  then  liquidated  and  acknowledged 
to  be  due  to  the  defendant,  still,  if  it  appeared  from  the  testimony, 
which,  in  this  respect,  was  confined  to  the  transcript  from  the  Trea¬ 
sury  Department,  (the  accounts  offered  by  the  defendant  having 
been  rejected,)  that  the  defendant  was  in  possession  of  advances 
from  the  government,  or  had  money  of  the  government  in  his  hands, 
or  any  other  account,  then,  in  such  case,  no  interest  could  by  law 
be  allowed  to  him. 

The  defendant  and  his  counsel  having  urged  the  Jury  to  certify  to 
the  Court  what  balances  were  due  (if  any  they  should  ascertain  to  be 
due,)  from  the  United  States  to  the  defendant — the  Judge’s  instruc¬ 
tions  to  the  Jury  on  that  point  were,  that  if,  on  a  full  investigation 
of  the  account  and  the  evidence,  they  should  be  of  opinion  that  the 
defendant  was  entitled  to  credit  equal  to,  or  greater  in  the  aggregate, 
than  the  sum  claimed  by  the  United  States  in  this  suit,  then  they 
should  find  a  general  verdict  for  the  defendant.  Such  a  verdict,  he 
said,  was  all  that  could  be  received,  and  recorded.  That  if  they 
should,  afterwards,  think  fit  to  give  the  defendant  the  proposed  cer¬ 
tificate,  it  could  only  be  done  by  them  as  individuals,  and  would 
form  no  part  of  the  record  or  proceedings  of  the  court. 

After  an  absence  of  several  hours,  the  jury  returned  and  ren¬ 
dered  a  verdict  for  the  Defendant.  The  foreman  then  presented 
to  the  Vice  President  the  following 

CERTIFICATE  : 

JVe,  the  Jurors  m  this  cause,  having  found  a  verdict  for  the  defend¬ 
ant,  do  also  find  and  certify,  that  there  is,  moreover,  now  due  from  the 
United  States  of  America  to  the  defendant,  Daniel  D.  Tompkins,  the 

sum  of  ONE  HUNDRED  AND  THIRTY-SIX  THOUSAND  SEVEN  HUNDRED 
AND  NINETY-NINE  DOLLARS  AND  NINETY-SEVEN  CENTS. 


Dated-  June  6th,  1822. 


ik. 


Trials 


L65832  vo 1.14. 

DATE 

ISSUED  TO 

Vo/-'*?' 


